1.Before the court is a notice of motion application brought under Section 100 of the Civil Procedure Act, Order 8 Rule 5 of the Civil Procedure Rules and Article 159(2) of the Constitution of Kenya seeking the following orders:-
1)Spent.
2)That this honourable court be pleased to grant leave to the petitioner to amend the relief clause of the petition.
3)That the draft amended petition annexed to the supporting affidavit be deemed to be properly filed upon payment of the requisite court fee.
4)That the costs of the application be provided for.
2.The application is premised on the grounds on its face and supported by the affidavit of Jenepher Chekemboi Kipsang alias Jennifer K. Kipsang sworn on 14th November, 2025. She deposes that upon closure of the 1st respondent's case, she realized that it was imperative to include a prayer for eviction of the 2nd respondent in the relief clause in the petition; that the respondents stand to suffer no prejudice if the orders sought are allowed.
3.The 2nd respondent opposed the application through grounds of opposition dated 18th November, 2025 and a replying affidavit sworn on even date. The grounds are as follows:
1.That the application is frivolous, misconceived and an abuse of the court process, having been brought after the petitioner and the 1st respondent have closed their case and after the 2nd respondent has substantively tendered his evidence save for the production of some exhibits, contrary to the principles governing amendment of pleadings.
2.That the petitioner has not offered any plausible reason why the amendment was not sought before the close of pleadings and/or before the close of her case.
3.That the proposed amendment seeks to introduce new reliefs which were not sought in the 1st instance, which will unfairly prejudice the 2nd respondent, if allowed, in that he will not have an opportunity to cross examine the petitioner.
4.In his replying affidavit sworn on 18th November 2025, Mike Chebii, Counsel for the 2nd respondent, reiterated his grounds of opposition and deponed that the proposed amendments point to a litigant nonchalantly proclaiming victory before the matter is determined and is attempting to reopen the petitioner’s case through the back door thus denying the 2nd respondent an opportunity to cross-examine her; that the 2nd respondent will be prejudiced; that the application has not being brought timeously and in good faith.
5.Whether or not to grant leave to a party to amend pleadings is subject to the court’s discretion. Rule 18 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) practice and Procedure Rules, 2013 (Mutunga Rules) provides that, “A party that wishes to amend its pleadings at any stage of the proceedings may do so with the leave of the Court.
6.Under Rule 18 of the Mutunga Rules, the court may permit an amendment at any stage of the proceedings to enable determination of the real questions in controversy and to avoid a multiplicity of suits, provided there has been no undue delay, no new or inconsistent cause of action is introduced, no vested interest or accrued legal right is affected and no injustice to the other side or prejudice to the other party is occassioned and if there is prejudice, the party can be compensated by an award of costs. See the case of Kenyatta National Hospital v Kenya Commercial Bank Ltd & Another [2003] 2 EA.
7.The purpose of amendment of pleadings is to enable the parties alter their pleadings to ensure that the litigation between them is conducted based on the true state of the facts which the parties really and finally intend to rely on. The power of amendment makes the function of the court more effective in determining the substantive merits of the case rather than holding it captive to form of the action or proceedings.
8.In the instant case, the 2nd respondent contends that the proposed amendments will introduce new reliefs which were not sought in the first instance. I hold a different view. The reliefs sought to be amended are as follows;
i)An order compelling the 1st respondent to cancel the registration (if any) of the 2nd respondent as owner of plot No, 19B Marigat Town Baringo County (if any);
ii)An order compelling the 1st respondent to forthwith unconditionally remove the 2nd respondent from Plot No. 19B Marigat town within Baringo County and restore the same to the petitioner.
9.The proposed amended reliefs are:
i)An order cancelling the registration of the 2nd respondent as the owner of plot number 19B Marigat town Baringo County( if any)
ii)An order of eviction of the 2nd respondent from plot No. 19B Marigat Town Baringo County to enable the petitioner take up possession of the same.
10.My understanding of the proposed amendments is that the petitioner wants the court to cancel the registration of the 2nd respondent as the owner of Plot No. 19B Marigat Town and orders for his eviction instead of directing the 1st respondent to implement the orders. To me these are not new reliefs. The court is being asked to absolve the 1st respondent from implementing the orders.
11.Whilst there is delay in bringing this application and no explanation has been offered as to why the application was filed after hearing of the case commenced, l do not see what prejudice the respondents will suffer if the orders sought are granted.
12.Consequently, I allow prayers 2 and 3 in the notice of motion dated 14th November, 2025. Costs of the application shall abide the outcome of the petition.
Dated, signed and delivered virtually at Kabarnet this 1st day of December, 2025.
L. N. WAITHAKA
JUDGE
Ruling delivered virtually in the presence of;-
Ms. Ochieng h/b for Mr Orege for the Petitioners.
Mr. Chebii for the Respondents.
Court Assistant; Ian