Olang' v Chimba & another (Enviromental and Land Originating Summons E022 of 2024) [2026] KEELC 3779 (KLR)

iv. The time for compliance with the order to amend pleadings be extended, and the Plaintifi be granted leave to file and serve amended pleadings within such period as the court may deem fit. v. The costs of this application be provided for. 3. The case of the Applicant is that on 3rd July, 2025 the court issued an order directing her to amend her pleadings within 14 days, failing which the suit would stand struck out with costs. 4. That she was medically incapacitated and admitted in hospital until 30th August, 2025, hence unable to comply. She therefore seeks that the order of 3rd July, 2025 be set aside and the suit be reinstated or, in the alternative, that time for compliance of the order dated 3rd July 2025 be enlarged. 5. The application was opposed vide the grounds in the Replying Afidavit sworn by Owino Kojo Advocate on 15th July, 2025. The Respondent’s case is that the application does not meet the threshold for review of a ruling as stipulated in Order 45 Rule 1 of the Civil Procedure Rules, 2010. That the Applicant is estopped from claiming that she was medically incapacitated. That the Applicant filed and served a supplementary list of witnesses and witness statement on 15th July, 2025, which was well within the 14 days ordered by the court. That vide the judgement in Kisumu ELC CASE NO.76 OF 2015, the sub-division of land parcel No. Kisumu/Kogony/1394 into numbers Kisumu/Kogony/7046, 7047, 7048, 7049 and 7050 was declared fraudulent and was consequently cancelled. 6. That the Applicant cannot therefore be right in stating that the land exists when its creation was nullified by the court. That the court has entertained the Plaintifi for too long yet justice is justice to both parties. 7. The application was heard by way of written submissions. It was submitted on behalf of the Applicant that her failure to amend the pleadings within the prescribed period was solely due to medical incapacity and hospitalization and not wilful disregard of the court directive. Relying on the case of Philip Chemwolo & Another -vs- Augustine Kubande [1982 - 88] KRA 103 where it was held that blunders will continue to be made by human beings and that it does not follow that because a mistake has been made a party should sufier the penalty of not having his case determined on merits, Counsel submitted that the law recognizes that inadvertence, illness or mistake should not bar a litigant from justice. 8. That the Applicant has suficient cause for not complying with the court directives. 9. On the legal status of the land parcel No. Kisumu/Kogony/7050, Counsel submitted that until the decree is implemented, the decree has no operative efiect upon the register. That there exists a green card that confirms the existence of the suit land. That the question of whether Kisumu/Kogony/7050 exists could not be determined through a preliminary objection. That by striking out the suit on a disputed fact, the court inadvertently denied the Applicant her right to have the substantive issues ventilated through a full trial. 10. That Order 50 Rule 6 and Order 10 Rule 11 of the Civil Procedure Rules empower the Court to enlarge time and set aside any orders made in default where suficient cause is shown. 11. That reinstating the suit will enable the court to address the real issues: land ownership, registration and efiects of an unimplemented decree. 12. On behalf of the Respondent, it was submitted that the Applicant is asking the court to sit as an appellate court to set aside its own orders issued on 3rd July, 2025, yet the court is functus oficio, and the orders sought can only be granted on appeal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3779/eng@2026-06-18 2

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13. That the application does not meet the threshold for review of a ruling as provided for in Order 45 Rule 1 of the Civil Procedure Rules. 14. That the failure to amend the pleadings was not a mistake but a choice. The Respondent prayed that the application be dismissed with costs. 15. I have considered the application, Supporting Afidavit and annexures thereto and the Replying Afidavit. The court record shows that the Appellant initiated the present suit vide the Originating Summons dated 11th October, 2024 claiming title to land parcel No.Kisumu/Kogony/7050 measuring 0.07 Ha by adverse possession. 16. Part of the Respondent’s response to the suit was a preliminary objection dated 24th January, 2025 seeking to have the suit struck out on the grounds that the issues in the suit had been finally determined in Kisumu ELCC NO.76 OF 2015, that the suit land does not exist and that since the Plaintifi had obtained leave to file an appeal, the suit was sub-judice. 17. The court record shows that the preliminary objection was heard and by its ruling dated 3rd July, 2025, the court, in declining to strike out the suit, granted the Applicant leave to further amend the Originating Summons within 14 days from the date of the ruling. The court further issued an order that if the Plaintifi failed to further amend the Originating Summons within the period given, the suit shall stand struck out with costs to the Defendant. 18. It is common ground that the Plaintifi did fail to further amend the Originating Summons within the timelines given; hence the suit stood struck out with costs at the expiry of the 14 days. 19. The explanation given by the applicant in the application for not complying with the court orders is that the Applicant was medically incapacitated and hospitalized. 20. The court record, however, shows that during the period of 14 days from 3rd July, 2025, the Plaintifi was able to file and serve a supplementary list of witnesses and an additional witness statement, both dated 15th July, 2025. 21. Further, on 6th October, 2025, when the matter came up for mention before court to confirm the filing of the further amended Originating Summons, the record shows that Counsel for the Respondent brought to the attention of the court the fact that the further amended Originating Summons had not been filed. The court placed the file aside for Counsel for the Applicant to respond. That the response of Counsel for the Applicant was that the Applicant had not further amended the Originating Summons because parcel No. Kisumu/Kogony/1394 did not exist. He did not mention the sickness or hospitalization of the Applicant. 22. This casts a doubt on the real reason why the court order was not complied with. Was it because the land parcel No. Kisumu/Kogony/1394 did not exist or because of sickness and hospitalization? If the latter, how was the applicant able to file other documents during the timelines given for amendment and not the amended Originating Summons? I find that no suficient cause has been demonstrated to warrant review or setting aside the orders of 3rd July, 2025. 23. Further, the application in part challenges the propriety, validity and merits of the court orders dated 3rd July, 2025. It was the applicant’s case that the court erred in striking out the suit on disputed facts, thereby denying the applicant her right to have the substantive issues ventilated through a full trial. This is outside the jurisdiction of this court to handle, as only the Court of Appeal can interrogate the propriety, validity and/or merits of the orders of this court. 24. For the foregoing reasons, the court finds that the application lacks merit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3779/eng@2026-06-18 3

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i. The application is dismissed. ii. Each party shall bear its own costs of the application. Orders accordingly. RULING DATED AND SIGNED AT KISUMU AND DELIVERED VIRTUALLY THIS 18TH DAY OF JUNE, 2026. E. ASATI, JUDGE. In the presence of: Atika: Court Assistant. Otieno Obiero for the Applicant. Owino for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3779/eng@2026-06-18 4

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