Sabera Karanyama M'Mwithiga & 4 others v Geoffrey Mutuma M'Rugongo

4. The defendant herein led a replying adavit sworn on 19.8.2019 in which he mentioned that he was seeking for their eviction from the suit land. 5. The plaintis led their issues for determination on 4.3.2020 and a paginated bundle on 25.1.2022, while the defendant despite various orders made failed to le any compliance documents. 6. Order 8 Rules 3 & 5 of the Civil Procedure Rules allows a party to apply to amend his pleadings at any stage of the proceedings, including an originating summons, petition and an originating notice of motion. The court has the ultimate discretion to allow the application on such terms as are just. 7. The principles to apply in Central Bank of Kenya vs Trust Bank Ltd & others (2000) eKLR, that a party would be allowed to make such amendments as may be necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no inordinate delay; that no new or inconsistent cause of action is introduced; that no vested interest or accrued – legal rights is aected and that the amendment can be allowed without injustice to the other side. 8. In Joseph Ochieng & 2 others vs First National Bank of Chicago Civil Appeal No. 149 of 1991, the court held that are the amendments are intended to determine the substantive merits of the case; should be timeously applied for; the power to amend can be exercised by the court at any stage of the proceedings; the general rule is that however late the amendment is sought, if made in good faith provided costs can compensate the other side; that the plainti will not be allowed to reframe his case or his claim if by an amendment of the plaint, the defendant would be deprived of his right to rely on the Limitations of Actions Act subject however to the powers of the court and that the court will still allow for an amendment notwithstanding the expiry of current period of limitation. 9. Applying the above principles, the applicant has not explained or the justied the inordinate delay given that in the replying adavit he had mentioned the issue of eviction. 10. The substratum of the suit is adverse possession. The defendant opted to le a replying adavit and not of a statement of a defence. 11. It appears he now wants to change tune by ling a defence and counterclaim. 12. In the replying adavit led herein, the defendant denied that he was the legal representative of the estate of the late Perista Kigetu and made it clear that he had not taken out any letters of grant over it despite the possession of a title deed over L.R No. Abuthoguchi/Ruiga/456. 13. In the draft counter claim he now describes himself as the legal representative of the estate of Perista Kigetu. 14. In Catherine Koriko & 3 others vs Evaline Rosa (2020) eKLR the Court of Appeal held that a claim for adverse possession proposed was inconsistent with a claim for being a beneciary of the estate of a deceased person, and since in the original suit the appellants had not conceded that indeed the respondent was the true owner of the property, a subsequent application to amend the statement of defence and counterclaim was nothing but an indirect attempt to re-open litigation over the suit property with a view of circumventing the substantive eect of and the rights of the opposite parties. 15. In Njoki Wainaina vs Josephat Thuo Githachuri & 3 others; National Land Commission & another (interested parties) (2021) eKLR, the court was faced with a situation where the intended amendment sought to introduce a counterclaim not made in the alternative and without prejudice to the claim of ownership. The court took the view that the proposed amendment was calculated to introduce a new case which would have changed the nature and or character and was at variance with the position hitherto ventilated or pleaded and therefore, inconsistent with the statement of defence https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13466/eng@2022-10-12 2

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pleaded coming four years later. The court found that the proposed pleadings were running contrary to the general principles governing the amendment of pleadings. 16. In this application, the delay of 3 years has not been explained at all. This court should not be seen to condone and or sanitize dilatoriness and ineptitudes. See Eastern Bakery vs Castelino (1958) E.A 361, Adbul Karim Khan vs Mohamed Roshan (1965) E.A 289, Aaron Tafari Ouko & another vs Solomon Boit (2021) eKLR. 17. In view of the foregoing reasons, I nd the application dated 24.6.2022 lacking merits. The same is dismissed with costs. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT THIS 12TH DAY OF OCTOBER, 2022 In presence of: Muchiri h/b for Kaimenyi for plainti C/A: Kananu HON. C.K. NZILI ELC JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13466/eng@2022-10-12 3

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