Pentecostal Evangelistic Fellowship of Africa (Sued through its registered Trustees) v Muiruri & 12 others

The Applicants Case 3. The deponent averred that the Plainti seeks the eviction of the Defendants on the ground that they are trespassers on the suit property. She further averred that the Defendants denied the Plainti’s claim, asserting that it had been extinguished by adverse possession, as they have been in actual, open, and exclusive possession of the suit property since 1980. 4. The deponent asserts that the Defendants have constructed permanent houses on the suit property. She further claims that the more than 43 individuals occupying the suit land should be included as Defendants in the counterclaim as their rights arise from the same facts as the Defendants'. She argues that the Plainti would not suer any prejudice, as it would have an opportunity to amend its pleadings. In conclusion, she urges the Court to allow the application as prayed. The Plainti/respondent’s Case 5. The Respondent led a replying adavit, sworn by Bishop Dr Joseph Mophat Kiloba on 29th April 2026, in opposition to the application. 6. The deponent contends that the application has been brought in bad faith, lacks merit, is an abuse of the Court's process and is intended to delay the hearing and determination of the suit. 7. He argued that the Applicants have not made any application to formally regularise any claim to adverse possession since 2005, when the suit was led. He further argued that the proposed amendment is inconsistent with the contents of the draft amended Defence and counterclaim, as the 11th and 12th Defendants deny the Plainti’s ownership on the one hand yet claim adverse possession, which cannot be pleaded at the same time. 8. He argued that the claim for adverse possession should be commenced by an Originating Summons under Order 37 Rule 7 of the Civil Procedure Rules. 9. He asserted that the Plainti would be prejudiced because the character of the suit would substantially change, compelling the Plainti to meet a new case after more than 20 years. He further asserted that the Defendants would be awarded for their inordinate delay and indolence. 10. He argued that the proposed joinder of 43 additional Defendants is res judicata and an abuse of the Court Process, as a similar application involving the same parties was heard and dismissed by a ruling dated 13th May 2024. 11. In conclusion, the Applicant urged the Court to dismiss the application with costs. Analysis and Determination 12. 13. Having considered the application and the replying adavit, the following issues arise for determination: a) Whether the Applicant should be granted leave to amend their defence to include a counterclaim for adverse possession; and b) Whether the proposed joinder of additional occupants should be allowed. Regarding the rst issue, Order 8 Rule 3(1) of the Civil Procedure Rules confers discretion on the Court to allow the amendment of pleadings at any stage of the proceedings on such terms as may be https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5543/eng@2026-09-18 2

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just. Order 8 Rule 5 further empowers the Court to order an amendment to determine the relevant question in controversy between the parties or to correct a defect or error in the proceedings. 14. The power to amend is discretionary and must be exercised judicially. The principles governing the amendment of pleadings are well settled. The general rule is that amendments sought before the hearing should be freely allowed if they can be made without causing injustice to the other side, and there is no injustice if costs can compensate the other party. 15. In Ochieng and Others vs First National Bank of Chicago, Civil Appeal No. 147 of 1991, the Court of Appeal set out the principles under which Courts may grant leave to amend pleadings as follows: a. The power of the court to allow amendment is intended to determine the true substantive merits of the case. b. The amendments should be timeously applied for. c. Power to amend can be exercised by the court at any stage of the proceedings. d. That, as a general rule, however late the amendment is sought to be made, it should be allowed if made in good faith, provided costs can be compensated to the other side. e. 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 reply on the Limitation Act, subject, however, to the powers of the court to still allow an amendment notwithstanding the expiry of the current period of limitation. 16. The Applicants seek to bring a counterclaim based on adverse possession. The Plainti argued that adverse possession may be pursued only by originating summons under Order 37, Rule 7. 17. The requirement under Order 37 Rule 7 to proceed by originating summons applies where the claimant seeks registration as proprietor by adverse possession. Accordingly, the proposed counterclaim is not incompetent merely because it seeks relief based on adverse possession. The issue for determination is whether the Applicants have satised the requirements for the exercise of the Court’s discretion to permit the amendment. 18. This suit was commenced in 2005. The Applicants contend that their occupation of the suit property began in 1980. They argue that they knew the facts underlying the proposed counterclaim long before ling the present application. The Applicants seek to introduce a substantive counterclaim for adverse possession more than two decades after the suit was commenced. This is not a mere correction of a pleading or a clarication of an existing averment. 19. That notwithstanding, the Court must distinguish between a new cause of action arising from the same facts and a claim that fundamentally alters the nature of the litigation. Order 8 Rule 3(5) permits an amendment introducing a new cause of action where it arises out of the same or substantially the same facts as the cause of action already pleaded. 20. In the present matter, the proposed counterclaim is closely connected to the Plaintis' claim for eviction. The Applicants' alleged occupation of the suit property is central to the Plaintis' assertion that the Applicants are trespassers. The proposed counterclaim therefore arises from substantially the same factual matrix as the Plaintis' claim. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5543/eng@2026-09-18 3

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21. Based on the evidence presented by the Applicants, they had knowledge of the factual basis of the proposed claim for a considerable period. Although the delay is substantial, it should not, by itself, prevent the Court from determining the real controversy between the parties. The issue of occupation of the suit property is already before the Court. Refusing the Applicants an opportunity to plead their claim may compel the parties to litigate the same factual dispute in separate proceedings. 22. The Plainti will have an opportunity to le a response to the counterclaim. I nd that the Applicants have met the threshold for leave to amend their defence to include the counterclaim. 23. Regarding the second issue, Order 1 Rule 10(2) of the Civil Procedure Rules empowers the Court, at any stage of the proceedings, to add a person whose presence before the Court is necessary to enable the Court to adjudicate eectively and completely on all questions involved in the suit. 24. The Applicants contend that the additional occupants derive their alleged rights from the same facts and occupy the same property. The Plainti opposed the joinder on the grounds that a similar application involving the same parties was dismissed in the ruling of 13th May 2024. 25. The ruling shows that the proposed joinder of the 43 persons sought to be joined in the application are the same parties that sought to be introduced in the previous application. Accordingly, the prayer for joinder of the additional 43 persons is hereby declined because it is res judicata. 26. The upshot of the foregoing is that the application partially succeeds on the following terms: a) Leave is granted to the Defendant to amend the Defence to introduce a counterclaim for adverse possession. b) The amended Defence shall be led and served within 7 days from the date hereof. c) The Plainti is granted corresponding leave to le and serve an amended plaint. d) The Applicant shall meet the costs of the application RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 18TH DAY OF SEPTEMBER 2026. ……………………………………. HON. T. MURIGI JUDGE IN THE PRESENCE OF: Alfonse Baraza the Plainti Vena-Court assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5543/eng@2026-09-18 4

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