Faida Martin Company & Two Others v Guyato Hegunda Guyo

thereby authorizing him to obtain title documents and transfer the suit property into his name without any encumbrance; that they said two agreements demonstrate the lawful manner in which the defendant and her late husband acquired possession and occupation of the suit property; that the defendant has further obtained a copy of a letter from the Gede Chief’s office dated 6th April 2022 addressed to the Land Registrar purporting to confirm the first plaintiff as the proprietor, as well as an executed transfer form indicating a transfer of the suit property by one Sheinaaz Jonhamed Omar to the plaintiffs for valuable consideration; that the said new documents are indispensable to the fair adjudication of the suit and provide compelling evidence to support the defendant’s claim to proprietorship of the suit land. With regard to the issue of supplementary witness statements the defendant avers that she is in contact with a nephew of the plaintiffs (the son of their brother) who possesses knowledge affirming that the suit property lawfully belongs to the defendant's late husband and his testimony will further corroborate the defence position. For the above reasons the defendant proposes to amend her Statement of Defence and Counterclaim and to file additional documents as well as witness statements and lists. The Response 3. The plaintiffs filed their response to the application through the sworn affidavit of the first plaintiff. In that affidavit the deponent accuses the defendant of bringing the application in bad faith with the sole purpose of overhauling the defendant’s pleaded case after identifying its inherent weakness; that the court's power to allow amendments must be exercised judiciously and not capriciously and should not be seen to sanction attempts to fundamentally reconstruct a case midstream; that in the present case the documents the defendant now seeks to introduce are agreements of 1994 and 1995 which are said to have MLDELCCNOE040/26-RLG/DF-18.03.26/FH-14.04.26/LH-14.04.26/DR-09.06.26F. Page 2 of 8

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been within her knowledge and custody for decades and no credible explanation is provided as to why such documents could not with reasonable diligence have been discovered and filed contemporaneously with her original pleadings; that the defendant’s allegation that she only recently discovered the documents is unsupported by evidence of diligence and she cannot invoke the court’s discretionally powers; that the present application is an attempt to litigate by installments; that the defendant should not be allowed to rely upon her own omissions or neglect to seek judicial indulgence; that the counterclaim is premised on the doctrine of adverse possession which is founded on non-permissive, hostile, open and uninterrupted occupation inconsistent with the title of the registered proprietor, yet the defendant now seeks to assert lawful purchase, contractual rights, beneficiary status and equitable ownership, all which are inconsistent with her previous reliance on adverse possession; that adverse possession claims and "lawful acquisition by way of sale" claims are mutually irreconcilable and cannot be made in the same proceeding and therefore allowing the application would prejudice the plaintiffs; that in any event no letters of administration or Grant of Representation are produced to demonstrate lawful authority to deal with the estate of the late Kambi Charo and the Law of Succession Act frowns upon dealings without proper authority and considers them null and void ab initio. The deponent terms the cited agreements as void and which cannot establish equitable interest; that the application has been brought only after the defendant has assessed the documentary strength of the plaintiffs claim; that the defendant’s attempts to introduce new documents and witnesses at this stage would if allowed necessitate fresh pleadings, delay the expeditious disposal of the suit, increase litigation costs and prejudice the plaintiffs' vested proprietary rights. The plaintiffs accuse the defendant of attempting to introduce MLDELCCNOE040/26-RLG/DF-18.03.26/FH-14.04.26/LH-14.04.26/DR-09.06.26F. Page 3 of 8

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extraneous matters, cause delay, and circumvent finality contrary to the overriding objective Sections 1A and 1B of the Civil Procedure Act. Submissions 4. The defendant filed submissions dated 7th March 2026 and the plaintiffs filed their submissions which are undated. I have considered both sets of submissions in the process of preparation of the present ruling. Analysis And Determination 5. The main issue for determination is whether this court should allow the defendant to amend her statement of defence and counterclaim as proposed. The main sub-issues arising are: a. Whether the application has been brought after inordinate and an explained delay b. Whether the proposed amendment introduce a new and inconsistent cause of action; c. Whether the proposed amendments would prejudice the plaintiffs. 6. The general rule regarding amendments is that a court should freely allow amendments to pleadings any time before judgment. Order 8 rule 3(1) of the Civil Procedure Rules confers upon the court a wide discretion to grant leave to amend pleadings at any stage of the proceedings on such terms as to cost or otherwise as may be just and in such a manner as it may direct. As seen from Sultanali Prarali Molu & Another Vs Kenya Railways & Another [2002] KEHC 724 (KLR), delay per se cannot defeat application for amendment as no time can be spelt out for an application for amendment. In St Patrick's Hill School Limited Versus Bank of Africa Kenya Limited 2018 eKLR, the court stated as follows: MLDELCCNOE040/26-RLG/DF-18.03.26/FH-14.04.26/LH-14.04.26/DR-09.06.26F. Page 4 of 8

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" 30. This power, envisaged in the provisions of Order 18 rule 10 of the Rules and section 146 of the Evidence Act, is intended to ensure that each party is afforded a fair trial guaranteed under Article 50 (1) of the Constitution. But a fair trial does not exist in a vacuum, it is governed by rules which by themselves ensure that each party is given the opportunity to present or defend his case fairly. That is the purpose of a trial court. It must make sure that the parties are given ample opportunity to ventilate the issues arising from their case. What the said rules must not do is to become an end in themselves and impede a fair trial and that is why Article 159(2) (b) of the Constitution provides that justice shall be administered without undue regard to technicalities. When a case is decided in accordance with substantial justice as depicted under the abovementioned article, justice will not only be seen but will be seen to have been done." 7. In the present case the suit was filed on 12 th of November 2024. The defence was filed in March 2025. The present motion was filed in January 2026. The suit has come up for mention on a number of occasions but it has not been subjected to full hearing of the parties' evidence. I therefore find that, taking into consideration the time taken for the disposal of the present motion, there was no inordinate delay in the filing of the application for leave to amend. 8. In the plaint, the claimants have asserted that the defendant’s husband was a relative to the plaintiff’s late mother and he was granted permission to stay on the suit properties he helped the plaintiff grandparents in their old age. The plaintiffs have averred that the defendant has without any colour of right or justification claimed that the suit property belongs to her and her late husband. It is clear from the plaint that the defendant is currently in occupation of the suit land. MLDELCCNOE040/26-RLG/DF-18.03.26/FH-14.04.26/LH-14.04.26/DR-09.06.26F. Page 5 of 8

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9. The defendant filed her Statement of Defence and Counterclaim dated 3rd March 2025. In that pleading she stated that the suit property was subject of another suit between her and a buyer known as Shenaaz Jon Mohamed Omar who sued her for eviction from the suit property claiming that she is the registered proprietor. That suit was however withdrawn. 10. Subsequently the plaintiffs herein sued the said Sheenaz Jonmohamed Omar in Malindi CMC Land Case Number E90 Of 2023 seeking to be declared the lawful owners of the suit property and that case is still pending before the Magistrate’s Court. The defendant states that neither the plaintiffs in the present case nor Sheenaz have ever had possession of the suit property as it has been in the possession of the defendant. 11. It is also asserted that the plaintiffs’ claim is statutorily time barred by the provisions of Section 7 of the Limitation of Actions Act. The defendant pleaded expressly that Thomas Kithi was a husband to the defendant who purchased the suit property from from Kambi Charo and who has been in continuous open occupation of the suit property. It is noteworthy that the proposed Amended Defence now seeks to include a claim that Kambi Charo gifted Thomas Kithi with 4 acres out of title number Gede/Mijomboni/4. 12. The proposed Amended Defence also seeks to include a claim that 4 acres out of the said title was sold to Thomas Kithi by the late Mwenda Kombe Nzai, plaintiff’s late mother; that the defendant states that she has recently discovered critical documents in her late husband’s files including two agreements dated 3 rd June 1994 and 21st July 1995 can not be disregarded. In that regard, the issue of purchase whether it was from Kambi Charo or his widow is not as new in the suit as alleged by the plaintiffs. What this court finds new in the proposed amendment is the claim that a portion of the land was gifted to Thomas Kithi by Kambi Charo. However, since the 4 acres form part of MLDELCCNOE040/26-RLG/DF-18.03.26/FH-14.04.26/LH-14.04.26/DR-09.06.26F. Page 6 of 8

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the title number Gede/Mijomboni/4, and the person who is alleged to have gifted the land to the defendant’s husband and the person who purportedly sold the remaining portion to the defendant’s husband was his widow, this court finds nothing that disqualifies the gift issue from being included in the proposed amended defence and counterclaim. 13. Also, I find that fraud had already been raised in the original Defence hence the inclusion of additional allegations or particulars of fraud based on discovery of new evidence is not irregular. 14. As to whether the proposed amendment would prejudice the plaintiff, this court notes that the suit has not yet been heard and there will be no risk of calling witnesses a second time perchance the amendments are allowed. No new and inconsistent cause of action is being introduced in the defence or counterclaim. Also, the plaintiffs would have an opportunity to respond to the proposed amended defence and counterclaim and so the ground would be levelled for both parties. In the circumstances I find that allowing the proposed amendments would not prejudice the plaintiffs in in any way. 15. The upshot of the foregoing is that the application dated 16 th January 2026 has merit and it is hereby allowed as prayed in prayer number 1 thereof. An Amended Statement of Defence and Counterclaim and the Supplementary Lists of Documents and of witnesses and the Supplementary Witness Statements shall be filed and paid for and served within 14 days of this order. Any response from the plaintiffs to the Statement Of Defence And Counterclaim as amended shall be filed and served within 14 days of service of the amended defence and counterclaim and the matter shall be listed for a mention for pre-trial on 22nd October 2026. Dated, signed and delivered at Malindi on this 23 rd September 2026. MLDELCCNOE040/26-RLG/DF-18.03.26/FH-14.04.26/LH-14.04.26/DR-09.06.26F. Page 7 of 8

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MWANGI NJOROGE JUDGE, ELC MALINDI. MLDELCCNOE040/26-RLG/DF-18.03.26/FH-14.04.26/LH-14.04.26/DR-09.06.26F. Page 8 of 8

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