1. This ruling is in respect of the Notice of Motion application dated 14th November, 2025 expressed to be brought pursuant to the provisions of sections 1A, 3A, of the Civil Procedure Act, Order 8 Rules 3(1), 5(1) and 7 and Order 50 Rule 6 of the Civil Procedure Rules and Article 159 of the Constitution of Kenya.
The application seeks orders that: -
(a) The honourable court be pleased to allow the Plaintiff to amend the plaint as per the draft amended plaint attached to the application.
(b) The honourable court be pleased to grant leave to the Plaintiff to produce additional documentary evidence and all additional witnesses for purposes of the hearing and just determination of the real issues in controversy between the parties in the suit.
(c) Costs of the application be provided for.
2. The application was based on the grounds that the pleading in paragraph 8 of the plaint inadvertently omitted to include relief for a declaration that the suit land belongs solely to the deceased Christopher Ogola Osongo and cancellation of the entries in the white card. That the Applicant now has new evidence in the form of a letter dated 4th September, 2025, from the Ministry of Lands. That the orders sought are necessary to enable the court to effectively and conclusively determine all the issues in controversy in the suit. That pleadings had already closed under the provisions of Order 2 Rule 13 of the Civil Procedure Rules, hence the need for leave of the court for the proposed amendment to the plaint and production of additional evidence. That the Defendants shall suffer no prejudice.
3. The application was supported by the averments in the Supporting Affidavit of Alex Mbeka Advocate, sworn on 11th November, 2025, and the annexures thereto.
4. The application was opposed vide the Grounds of Opposition dated 4th December, 2025, filed on behalf of the 1st Respondent. The 1st Respondent’s response is that the application is misconceived, bad in law, and an abuse of the court process. That the Applicant lacks locus standi to bring the application.
5. The 3rd Respondent’s response to the application was contained in the Replying Affidavit sworn by Christine Wahome on 16th February, 2026. The 3rd Respondent contended that the Supporting Affidavit sworn by the learned Counsel on contested evidentiary matters offends the law. That the application was brought after pleadings had closed and the Plaintiff and two witnesses testified. That the Plaintiff is attempting to reopen and restructure his case after appreciating the weaknesses exposed during testimony.
6. The 3rd Respondent contended further that the proposed amendment introduces substantive and far-reaching prayers for declaratory orders and cancellation of the entries in the register, which materially alter the character, scope, and legal consequences of the suit. That the document sought to be produced was unavailable at the time of filing suit. That allowing production of the documents will occasion grave prejudice to the Defendants. That the application is calculated to delay the matter and to ambush the Defendants with new relief and documents after the Plaintiff has tested the evidentiary waters. That the application lacks merit, is procedurally improper, and ought to be dismissed with costs.
7. It was submitted on behalf of the Applicant that the proposed amendments do not introduce a new cause of action or change the cause of action. That the Defendant will not be prejudiced in any way, as they have a chance to amend their pleadings and to cross-examine. That the application was made in good faith.
8. On behalf of the 1st Respondent, Counsel submitted that the 1st Respondent only opposes prayer No.3, which is the prayer for production of additional evidence. Counsel submitted that production of the letter would prejudice the 1st Respondent.
9. The Attorney General did not oppose the application.
10. On behalf of the 3rd Respondent, it was submitted that the court should consider the reasons for bringing the application late. That the proposed amendment will allow the Plaintiff to rework his case. That the document proposed to be produced was made in September, 2025. That it is clear that the document was available before the commencement of the hearing of the suit. That the Applicant must demonstrate that he was not able to reach the proposed document before the hearing commenced.
11. I have considered the application. The 1st and 3rd Defendants oppose the application on the grounds that the Supporting Affidavit was sworn by Counsel contrary to law. In submitting that the Supporting Affidavit was valid, Counsel for the applicant referred the court to authority No.3 on his list of authorities. Order 19 of the Civil Procedure Rules makes provision in regard to Affidavits. Rule 3 thereof provides for matters to which Affidavits shall be confined, namely, matters that the deponent is able of his own knowledge to prove. The proviso thereto allows a party in interlocutory proceedings or with leave of the court to swear statements of information and belief showing the sources and grounds thereof.
12. In paragraph 2 of the impugned Affidavit, Counsel takes responsibility for omitting to plead the relief of declaration that the suit property belonged solely to the deceased, and cancellation of title, and to amend a typographical error at paragraph 9 of the plaint. The rest of the matters are based on information from the client. Although it is proper that Affidavits be sworn by the parties and not Counsel, given the provisions of the proviso to Rules 3 of Order 19 Civil Procedure Rules and the nature of the averments in the Supporting Affidavit, I find that the Affidavit is a dismissible. See case of In Turea Limited t/a Dr. Mattress v Mohamed (Civil Application E030 of 2022) [2022] KECA 1271 (KLR) (18 November 2022) (Ruling), it was stated that
“…under Rule 9 of the Advocates Practice Rules, it is not the mere swearing of an affidavit by an advocate that renders it defective, but the swearing of an affidavit on contentious issues of which he or she has no knowledge. The said rule has a proviso that expressly states so as follows: “Provided that this rule does not prevent an advocate from giving evidence whether verbally or by declaration or affidavit on formal or non-contentious matter of fact in any matter in which he acts or appears”.
13. Only the 3rd Defendant opposed the prayer for leave to amend the plaint. The general principle, as held in Central Kenya Ltd -vs- Trust Bank & 4 Others CA NO.222 of 1998, is that all amendments should be freely allowed at any stage of the proceedings, provided that the amendment will not result in prejudice or injustice to other parties which cannot properly be compensated for in costs.
14. In the case of AAT Holding Ltd -vs- Diamond Shields International Ltd., the grounds to consider in an application for amendment of pleadings were set as shown below;
i. That amendment is necessary for determining the real question in controversy.
ii. To avoid multiplicity of suits, provided there has been no undue delay.
iii. Only where no new or inconsistent cause of action is introduced i.e., if the new cause of action does not arise out of the same facts or substantially the same facts as a cause of action.
iv. That no vested interest or accrued legal rights are affected; and
v. So long as it does not occasion prejudice or injustice to the other side, which cannot be properly compensated for in cost.
As the Plaintiff is yet to close his case, and given that the 3rd Defendant’s concerns can be covered by way of grant of leave to amend its defence,
I find that the prayer for amendment of the plaint is merited.
15. The document sought to be placed on record as additional evidence is a letter dated 4th September, 2025. Relying on the case of Mohammed Abdi Mohamud -vs- Ahmed Abdulahi Muhamud & Others, Supreme Court Petition NO.7 of 2018 as consolidated with No.9 of 2018, where the Supreme Court laid down the principles to consider in an application to adduce additional evidence, I find that the prayer is merited. The Defendants will have a chance to test the credibility of the document by cross-examining the maker thereof and by production of evidence to counter it.
I find merit in the application and hereby allow it as follows;
i. The Plaintiff is granted leave to amend the plaint in accordance with the draft amended plaint. The amended plant shall be filed and served within 14 days hereof.
ii. Corresponding leave is granted to the Defendants to file and serve amended defence, if need be, within 14 days of service of the amended plaint.
iii. The letter dated 4th September, 2025, may be placed on record by way of a Supplementary list of documents by the Plaintiff within 14 days hereof to be produced in accordance with the rules of production of documentary evidence.
iv. Costs of the application are awarded to the 1st and 3rd Defendants.
Orders accordingly.
Ruling dated and signed at Kisumu and delivered this 19th day of March, 2026, virtually through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Maureen: Court Assistant.
Mbeka for the Plaintiff/Applicant
Ken Omollo for the Defendant/Respondent.
Odiyo for the 3rd Defendant/Respondent.
| ELC LC E024/2024 RULING Page 2 |