Gospel Sanctuary Ministry (Suing Thro' Its Trustees) v Mwaura

any time before Judgment, it is incumbent upon the Plainti/Applicant to seek the Court's leave to amend the Originating Summons accordingly. 3. Additionally, in his Supporting Adavit, Francis Gichiri Kagondo arms that the Plainti is a Church duly registered under the Societies Act on 28/11/2003, as evidenced by its registration certicate annexed as "FGK-1". He further claries, referencing an ocial letter dated 22/05/2026, annexed as "FGK-2", that the registered ocials of the Church are Stephen Nganga Mwangi, Peter Mutuku Kioko, and Peter Njuguna Njau. He explains that when the suit was led, the Church's former Advocates inadvertently initiated pleadings under the name Gospel Sanctuary Ministry alone. Following advice from current legal Counsel, he notes that an amendment is necessary to properly include the oce bearers as required by law, presenting the proposed updates in the Draft Amended Originating Summons annexed as "FGK-3". 4. He submits that allowing this amendment is essential for determining the real issues in controversy and stresses that, despite the matter being part-heard, the Defendants will suer no prejudice as they retain full opportunity to defend the suit. Finally, based on legal advice that pleadings may be amended at any time before Judgment, he maintains that the interests of justice favor granting the leave sought, as the Plainti would otherwise face severe prejudice. 5. The Application is unopposed. Despite the Court directing that the Respondents who were in Court on 20/07/2026 le their responses within 14 days from the said date, no response was led. The Court also gave direction to the parties to le brief submissions and exchange within 14 days thereafter. Only the Applicant has led their submissions dated 08/09/2026. 6. In brief the Plainti/Applicant’s written submissions dated 8/09/2026, advocate for leave to amend an Originating Summons to properly join the Church's registered ocials Stephen Nganga Mwangi, Peter Mutuku Kioko, and Peter Njuguna Njau who were inadvertently omitted during initial ling. Addressing whether pleadings can be amended while a matter is part-heard, the Applicant relies on Order 8 Rules 3 and 5 of the Civil Procedure Rules to argue that Courts possess wide discretion to allow amendments at any stage to determine the true controversy and avoid a multiplicity of suits. 7. The submissions highlight the Court’s decision in Institute For Social Accountability & Anor v Parliament of Kenya & 3 Others [2014] eKLR, emphasizing that the object of amending pleadings is to base litigation on the true state of facts rather than a false hypothesis, provided it causes no injustice. This position is further reinforced by referencing Paul Mutai Keino Koshior v Joel Kipchirchir (ELDORET H.CCC 60/2008), where the Court armed that amendments should be freely allowed anytime before Judgment if any potential prejudice to the opposing party can be compensated by costs. 8. Regarding the second issue, the Applicant asserts under Order 1 Rule 10 of the Civil Procedure Rules that the Church's registered ocials are necessary parties because a society registered under the Societies Act cannot sue strictly in its own name. Citing Investments & Mortgages Bank Limited v Nancy Thumari & 3 Others [2015] eKLR, the Applicant illustrates that a necessary party is one without whom no eective decree can be passed, rendering the suit a potential non-starter if they are omitted. The submissions stress that the initial drafting Advocate intended to sue through trustees but accidentally omitted their names, a technical oversight that should not penalize the litigant. Given that the application is unopposed, the amendment introduces no new cause of action, and the Respondent retains full opportunity to tender evidence, the Applicant urges the Court to exercise its discretion in the interest of justice and grant the leave sought. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5586/eng@2026-09-21 2

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Issues for Determination i. Whether the Court should grant leave to amend the Originating Summons when the matter is part-heard. ii. Whether the Church’s registered ocials are necessary parties to be joined to the suit under Order 1 Rule 10 of the Civil Procedure Rules. 9. Courts maintain broad discretionary jurisdiction under Order 8 Rule 3 of the Civil Procedure Rules to allow amendments even after a hearing has commenced, provided the core nature of the suit remains unchanged and no uncompensable prejudice is suered by the opposing party. 10. In Central Kenya Conference Association of Seventh Day Adventists v Trustees of the Registered Trustees of the Seventh Day Adventist Church (East Africa) Limited [2018] eKLR, the Court of Appeal re-armed that part-heard status is not a bar to amending pleadings, stating verbatim: “ The power of the Court to allow amendments is intended to determine the real questions in controversy between the parties. The mere fact that a matter is part-heard is not a bar to an application for amendment of pleadings, provided the amendment does not introduce a new cause of action, cause injustice or prejudice to the other party that cannot be compensated in costs, or result from undue delay." 11. In Joseph Ochieng & 2 Others v First National Bank of Chicago [1995] eKLR, the Court of Appeal underscored the imperative of determining substantive disputes over technical defaults, holding verbatim: “ The power of the Court to allow amendments is intended to determine the real question in controversy between the parties. An amendment should be allowed if it can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs." 12. A society registered under the Societies Act (Cap 108) lacks separate legal entity status and cannot sue or be sued strictly in its own corporate name without its oce bearers or trustees representing it. 13. In Trustees of the Registered Trustees of the Church of God in East Africa v Attorney General & 2 Others [2020] eKLR, the High Court analyzed the legal standing of unincorporated entities and societies, stating verbatim: “ A society registered under the Societies Act is an unincorporated association and lacks independent corporate personality or the legal capacity to sue or be sued in its own name. Such a body can only institute or defend legal proceedings through its registered ocials or trustees duly named as parties to the suit." 14. This principle regarding misnomers and lack of legal personality under Order 1 Rule 10 of the Civil Procedure Rules is applied across East African jurisdictions, as seen in decisions like Registered Trustees of Moroto Diocese v Church of Uganda Karamoja Diocese and 2 Others (Civil Suit No.003 OF 2024) 15. An unincorporated association or society registered under the Societies Act lacks separate legal personality and cannot sue or be sued strictly in its own corporate name without its ocials or trustees. As provided under Order 1 Rule 10(2) of the Civil Procedure Rules, the Court may order the addition https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5586/eng@2026-09-21 3

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of any party whose presence is necessary to enable the Court to eectually and completely adjudicate upon all questions involved. 16. Additionally in Investments & Mortgages Bank Limited v Nancy Thumari & 3 Others [2015] eKLR, the Court dened the standard for determining a necessary party, stating verbatim: “ In my view, a necessary party is a person who ought to have been joined as a party and in whose absence no eective decree can be passed in a proceeding by the Court. If a necessary party is not impleaded, the suit may be a non starter as the reliefs sought is granted, maybe ineective." 17. The registered ocials Stephen Nganga Mwangi, Peter Mutuku Kioko, and Peter Njuguna Njau are necessary parties because any decree issued in favor of or against "Gospel Sanctuary Ministry" without its registered ocers would render the suit defective or unenforceable under the Societies Act. Joining them cures a procedural defect, bringing the true legal representatives before the Court. 18. Given the following I issue these Orders: i. The Plainti/Applicant is hereby granted leave to amend the Originating Summons dated 3/11/2022, as set out in the Draft Amended Originating Summons annexed to the application. ii. The Draft Amended Originating Summons is hereby deemed as duly led and served upon payment of requisite Court fees, if any. iii. The Defendants/Respondents are granted leave to le and serve any consequential amendments or responses within fourteen (14) days of service. iv. Mention to conrm compliance and take a hearing date on 14/10/2026. v. Costs of this application shall be in the cause. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 21ST DAY OF SEPTEMBER 2026. …………………… MOGENI J JUDGE In the presence of: Ms. Wambua holding brief for Mr. Kiragu for the Plainti Mr. Omondi for the Defendant Mr. Melita - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5586/eng@2026-09-21 4

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