https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3097

Owino & another v Leo (Environment and Land Case 133 of 2019) [2026] KEELC 3097 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3097 (KLR) Republic of Kenya In the Environment and Land Court at Eldoret Environment and Land Case 133 of 2019 CK Yano, J May 21, 2026 Between Christopher Omondi Owino 1st Applicant George Collins Owino 2nd Applicant and Siro A. Leo Respondent Ruling 1.By a Notice of Motion Application dated 5th February, 2026, the Applicants herein sought the following orders: -i.The Applicants be allowed to amend the Originating Summons filed herein on 4th December, 2019 and dated 2nd December, 2019 as per the draft amended Originating Summons annexed hereto.ii.The draft Originating Summons be deemed to be properly filed subject to payment of requisite fee.iii.Costs of this Application to be provided for. 2.The application is premised on the 12 grounds on the face thereof and supported by the Affidavit sworn by the 2nd Applicant on even date, on his own behalf and on behalf of the 1st Applicant. 3.It is the 2nd applicant’s claim that the proposed amendment is intended to bring before the court the inclusion of Block 21 to the citation of the suit property. 4.It is his contention that it is necessary and in the interest of justice that the Originating Summons be amended so as to bring before this court the said information which is necessary and essential for the complete adjudication of the real questions in controversy in the instant suit. 5.The 2nd applicant avers that at the time of drafting and filing the said Originating Summons, there was a typographical error in relation to the citation of the suit property known as Eldoret Municipality Block 21 (Kingongo)/578 and the word Block 21 was inadvertently left out in their prayers in the Originating Summons dated 02.12.2019. 6.It is further deponed that the said typographical error went unnoticed until recently, when their advocate on record while preparing their final submissions noticed the same hence the need to have the same amended before the matter is set down for hearing. 7.It is however his claim that in the Affidavit in support of the Originating Summons, the full citation of the suit property has been quoted, which in his view further confirmed that the error in the prayers on the body of the Originating Summons was a typographical error, which can be cured by amendment. 8.He further maintains that throughout the proceeding of the suit, the correct citation has been used during the testimony, including in the orders issued by the court for survey of the suit property and from the survey report filed by both parties in which the correct citation was captured. 9.In conclusion, it was the 2nd applicant’s contention that no prejudice will be occasioned to the respondent by the proposed amendment as the same seeks to bring clarity on the two parcels and thus urged the court to allow the application as prayed in the interest of justice and fairness. 10.The application was opposed. The Respondent filed a Replying Affidavit sworn and dated 2nd March, 2026. 11.The respondent dismissed the present application as having been brought in bad faith, after unreasonable delay after the close of each party’s case, aimed at occasioning further delay in the conclusion of the matter. That the same is therefore an abuse of the court process, scandalous, frivolous and vexatious and thus ought to be dismissed. 12.It is his claim that even though the power to amend may be exercised by the court at any stage of the proceedings, the applicant’s proposed amendment seeks to fill in the gaps in his case. He averred that the parcel of land known as Eldoret Municipality/King’ong’o/578 is different from the parcel of land known as Eldoret Municipality Block 21 (King’ong’o)/578. 13.It is therefore his contention that the applicant is keen on amending the Originating Summons so as to introduce a new parcel of land after the close of both the applicants’ and respondent’s respective cases. 14.It is deponed that no reasonable explanation has been given by the applicant for the delay and maintained that the proposed amendment by the applicant has been caught up by the doctrine of laches. 15.In addition, it is the respondent’s claim that parties are bound by their pleadings and therefore allowing the proposed amendment made late in the day will accord the applicant an unfair advantage. 16.In conclusion, he deponed that he stands to suffer great prejudice in the event the proposed amendment are allowed and urged the court to dismiss the same with costs in the interest of justice. 17.The present application was canvassed by way of written submissions. The applicants filed their submissions dated 23.03.2026 together with authorities while the respondent filed his submissions dated 22.04.2026 together with authorities which I have read and considered in arriving at my decision as hereunder. Analysis and Determination: 18.I have carefully considered the grounds in the application as well as the supporting affidavit and the annexures thereto, the Replying Affidavit in response to the application as well the rival submissions in totality. 19.It is therefore my considered view that the issues arising for determination are as follows: -i.Whether the applicants have met the criteria for the grant of leave to amend their Originating Summons.ii.Who shall bear the costs of the present application? Whether the applicants have met the criteria for the grant of leave to amend their Originating Summons; 20.Order 8 Rule 3 of the Civil Procedure Rules provides for the amendment of pleadings with leave and states as follows: -Order 8 rule 3 - Amendment of pleading with leave.(1)Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings. (emphasis added) 21.The applicants herein have sought leave of the court to amend the Originating Summons in order to include the word Block 21 in the citation, description and/or reference of the suit parcel of land. 22.It is their claim that the same was inadvertently left out due to a typographical error at the time of drafting the Originating Summons dated 02.12.2019 and the same was only recently discovered by their counsel on record while preparing their final submissions. 23.It is however their contention that in the Affidavit in Support of the Originating Summons, the same was properly captured and the full citation and/or description of the suit property is outlined. In addition, that throughout the conduct of the matter and in trial, both parties made reference to the correct citation and/or description of the suit property. 24.They therefore maintain that the proposed amendment is necessary as the same merely aligns the pleadings with the evidence already on record and is necessary for the full and effective adjudication of the dispute. It was pleaded that the proposed amendment neither introduces a new cause of action, does not change the nature of the claim nor introduce new facts that may require the reopening of the case. 25.The respondent on the other hand dismissed the said proposed amendment mainly on the ground that the same had been brought too late in the day, nearly 7 years after the filing of the suit. 26.It is further his claim that the same seeks to introduce a new cause of action for the reason that the two parcels of land Eldoret Municipality/ King’ong’o/578 and Eldoret Municipality Block 21 (King’ong’o)/578, are significantly different and he therefore stands to be greatly prejudiced when the same is allowed. He maintained that parties are bound by their pleadings and the applicants should not be allowed to fill in the gaps in their case. 27.I have carefully considered the grounds in the application and the reasons and/or explanation advanced by the applicants and the draft Originating Summons annexed to the supporting affidavit, which basically shows that the proposed amendment is solely on the inclusion of the word “Block 21” as part of the description of the suit property herein. There is no new cause of action and/or issue that has been introduced that would be prejudicial to the respondent herein in any manner whatsoever. 28.Moreover, this court has taken the liberty to peruse the court record herein, the pleadings, documents relied on by the parties as well as the testimonies by the parties and their witnesses in support of their rival claims and I do note that the proper reference and/or description of the suit parcel with the word “Block 21” was captured both in the pleadings as well as in the testimonies before the court. 29.From a cursory look at the Affidavit in support of the Originating Summons, and in particular at paragraphs 4, 5 and 6 of the said Affidavit in support of the OS, it is evident that the suit property has been referenced and/or described and/or cited with the inclusion of the word “Block 21”. This is also seen in the copy of the certificate of official search dated 29.11.2019, relied on by the applicants in support of their case, which also has the word “Block 21”. 30.During the trial, the issue of the description of the suit property did not arise at any given time including on cross-examination. As a matter of fact, the parcels of land in dispute were mostly referred to as either Plot 578 or Plot 579. However, during the testimony of DW1, DW2 and PW6, the suit parcels in dispute herein were properly described and the word “Block 21” included in the reference and/or citation. 31.In essence therefore, it is clear from the foregoing that the proposed amendment, which in effect entails the inclusion of the word “Block 21” in the description and reference of the suit property is not an introduction of a new issue. Throughout the proceedings, the same has been used in the description of the suit property and it is therefore not true that the same is a completely different parcel of land. As such therefore, no prejudice will be occasioned to the respondent if leave is granted and the proposed amendment allowed as prayed. 32.I have noted that the respondent in his replying affidavit has stated that the parcel of land known as Eldoret Municipality/King’ong’o/578 and Eldoret Municipality Block 21 (King’ong’o) / 578 are different. However, the respondent has not provided any proof in support of the said averments, either in the form of a copy of Green Card or Certificate of Official Search. In the absence of any proof, the same remain unsubstantiated allegations with no probative value. 33.The general rule is that amendment should be allowed if it can be made without causing injustice or prejudice to the other party that cannot be compensated by costs. In view of the above, it is my considered opinion that there is need to allow the proposed amendment and include the word “Block 21” in the description and/or reference of the suit property for the effective and complete adjudication of the dispute herein, to ascertain the description of the suit property with clarity. 34.In the premises, this court finds that the applicants have met the criteria/threshold to warrant the grant of leave to amend the Originating Summons as sought. Who shall bear the costs of the application; 35.It is well settled that costs follow the event unless the court directs otherwise. However, given the nature of the application herein, I will direct each party to bear their own costs of the application. Conclusion: 36.In view of the foregoing, it is the finding of this court that the Notice of Motion Application dated 5th February, 2026 is merited and is hereby allowed on the following terms: -i.Leave be and is hereby granted to the applicants to amend their Originating Summons by including the word “Block 21” in the description of the suit property.ii.The applicants be and are hereby directed to file and serve the amended Originating Summons within 7 days from the date of this ruling.iii.A corresponding leave be and is hereby granted to the respondent to amend his response to the Originating Summons within 14 days from the date of service, if need be.iv.Each party to bear their own costs of the application. 37.It is so ordered. DATED, SIGNED AND DELIVERED IN ELDORET THIS 21ST DAY OF MAY, 2026.HON. C. K. YANOJUDGERuling delivered in the presence of: -Mr. Kipsamo for the Applicants.Mr. Wainaina for the Respondents.Court Assistant – Laban