Phyllis Jepkemoi Kiplagat (Suing as the Legal Representative of the Estate of Thomas Ego Bore) v The Catholic Dioceses of Eldoret (Registered) alias Diocese of Eldoret Trustees (Registered), Vipul Ratilal Dodhia, Seville International Limited, Bank of Baroda & Land Registrar, Uasin Gishu Land Registry

herein had been commenced by way of plaint and be heard by way of viva voce evidence. iii. This honourable court be pleased to order that the Replying Affidavits filed by the Respondents herein in response to the subject suit be deemed as the Respondents’ Defence. iv. This honourable court be pleased to grant temporary stay of proceedings of the hearing of the subject matter herein slated on the 13th May, 2026. v. That once proceedings herein are converted from Originating Summons to proceed by way of Plaint, the honourable court do grant leave to the Applicant to amend the Amended Originating Summons herein in terms of the Amended Plaint as annexed thereto. vi. The Amended Plaint be deemed as duly filed upon payment of the requisite filing fees. vii. The Applicant herein be allowed to reopen the Applicant’s case and that she be allowed to file Further List of Witnesses and Witness Statements. viii. The Respondents herein be at liberty to respond to the Amended pleadings and to cross-examine the Applicant’s witness on the additional evidence adduced. ix. Costs of this Application be in the cause. 2. The application is premised on the 11 grounds on the face thereof and on the Supporting Affidavit sworn by the Applicant on even date. ELC Case No. 15 Of 2019 (O.S) Ruling Page 2

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3. She explained that the instant suit was instituted by her deceased husband vide an Originating Summons dated 25.01.2019. Upon the death of her husband on 16.10.2025, she filed an application seeking to substitute him, which application was allowed and the pleadings subsequently amended to capture the said substitution. 4. It is the applicant’s contention that she has since realized that the facts and issues in dispute in the present suit are too contentious to be adequately and conclusively determined by way of an Originating Summons and affidavit evidence hence the need to convert the Originating Summons to a Plaint and for the matter to proceed by way of viva voce evidence. 5. The applicant claims that the subject matter of the dispute goes beyond the issue of adverse possession. That the same seeks to address issues on the illegalities involved in the removal of the caution registered by the late Thomas Ego and the alleged fraudulent transfer of the suit land to the 1 st respondent and thereafter to the 2nd respondent. 6. She further avers that the issues arising from the dispute between the parties herein also touches on the validity of the Charge registered in favor of the 4th respondent and an ELC Case No. 15 Of 2019 (O.S) Ruling Page 3

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alleged issue of breach of constructive trust against the 1 st respondent. 7. Based on the foregoing, the applicant contends that there is need for viva voce evidence to be adduced for purposes of determining the real questions in dispute between the parties herein and for the court to allow the amendment of pleadings to include the said issues which she maintains are crucial to the substantive determination of the suit herein. 8. It is further deponed that after the said amendment, the court should issue an order for the reopening of the applicant’s case to allow for further examination and crossexamination in relation to the new issues raised. 9. In conclusion, it was the applicant’s contention that no prejudice would be suffered by the respondents and thus urged the court to allow the application as sought in the interest of justice. 10. The application was opposed. The Respondents filed their various Replying Affidavits and Grounds of Opposition in response to the present application. ELC Case No. 15 Of 2019 (O.S) Ruling Page 4

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11. The 1st respondent filed a Replying Affidavit dated 5 th May, 2026 and sworn by one Fr. Francis Moriasi, a priest of the Diocese of Eldoret, Prefecture Apostolic. 12. He dismissed the present application as being misconceived, incompetent and an abuse of the court process and the same thus ought to be dismissed with costs. 13. He acknowledged that the suit was commenced by way of Originating Summons by the applicant’s late husband, Thomas K. Ego Bore. He however stated that before his demise, the said Thomas K. Ego Bore had already testified, adduced his evidence and closed the plaintiff’s case and the matter was presently pending the hearing of the defence case. 14. It was the 1st respondent’s claim that the substitution of the deceased plaintiff with the applicant should not alter the nature of the suit and maintained that parties are bound by their existing pleadings and evidence. 15. He further avers that the applicant has not demonstrated the existence of any new evidence and/or special circumstances to justify the reopening of the applicant’s case. Further, he stated that the applicant cannot be allowed to reopen her case for purposes of introducing a new cause of action. ELC Case No. 15 Of 2019 (O.S) Ruling Page 5

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16. In response to the prayer for conversion of the Originating Summons to the Plaint, it was deponed that the same is legally untenable and amounts to re-litigation. He maintained that the present application was an attempt to fill in the gaps in the plaintiff’s case. 17. At the end, he urged the court to dismiss the present application with costs and to allow the matter to proceed for the hearing of the defence case. 18. The 2nd, 3rd and 4th defendants/respondents filed both Grounds of Opposition dated 13th April, 2026 and a Replying Affidavit dated 16th April, 2026 and sworn by one Miten Lodhia, a director of the 3 rd respondent, in response to the present application. 19. In the Grounds of Opposition, it was pleaded that the plaintiff/applicant had not satisfied the conditions for the grant of the orders sought. 20. The 2nd to 4th respondents did further aver that prayer 2 and 3 of the application had been overtaken by events for the reason that directions were already issued on the conversion of the originating summons into a plaint and it is on that basis that the matter did proceed for compliance under ELC Case No. 15 Of 2019 (O.S) Ruling Page 6

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Order 11 of the Civil Procedure Rules and for hearing by way of oral evidence. 21. It is their claim that the present application is guised as an application for amendment but in essence, the same seeks to introduce a new claim and issues and thus a clear departure from the initial claim and pleadings. That the applicant has had an opportunity to not only peruse the defence by the defendants, the witness statements but also the line of questioning during the hearing of the plaintiff’s case and hence the same will be prejudicial to the respondents if allowed. 22. Further, it is pleaded that if the present application is allowed, the amendments being sought are likely to defeat the defence of limitation. 23. With regard to the prayer of filing a Further List of Witness and Witness statements, it was pleaded that the applicant had not disclosed the witness she intends to call and the nature of the additional evidence the said witness intends to give, especially in light of the fact that the plaintiff had already closed his case and the matter is pending for defence case. ELC Case No. 15 Of 2019 (O.S) Ruling Page 7

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24. In conclusion, it was the 2 nd to 4th respondents’ claim that if the application is allowed, the same will amount to altering the substratum of the case and delving into issues that are outside the pleadings filed in court where no basis and justification has been offered by the applicant. They thus urged the court to dismiss the application with costs. 25. In the Replying Affidavit, it was deponed that the present application is aimed at derailing the conclusion of the suit as the plaintiff continues to enjoy the interim orders of injunction which have been in place since 14.05.2019 to the detriment of the 3rd respondent who is burdened by a loan and cannot utilize the suit property to generate income. 26. It is reiterated that the present application has been guised as seeking orders for conversion of the originating summons into the plaint and amendment but in reality, the same is intended to completely change the entire suit and introduce new issues that were not in contention at the time of filing the suit. That the applicant has introduced new issues and is now basing her claim on fraud and constructive trust as opposed to adverse possession. 27. In addition, it is claimed that on 03.03.2020, at the plaintiff’s instance, directions were taken to have the originating summons converted ELC Case No. 15 Of 2019 (O.S) into a plaint. Ruling That parties were Page 8

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thereafter directed to file their necessary documents in full compliance with the provisions of Order 11 of the Civil Procedure Rules and the matter subsequently proceeded for hearing of the plaintiff’s case by way of oral evidence. That the late Thomas E. Bore testified, adduced evidence and called two witnesses in support of his case. That prayers 2 and 3 in the application have therefore been overtaken by events. 28. The Respondents reiterated the contents of the Grounds of Opposition and in the end, urged the court to dismiss the present application with costs. 29. When the matter came up for interpartes hearing of the present application on 13.05.2026, Ms. Rop informed the court that the 5th Defendant would not be participating in the Application. 30. The present application was canvassed by way of written submissions. The applicant filed her submissions dated 25.05.2026 together with authorities while the 2nd to 4th respondents filed their submissions dated 08.06.2026 and the 1st Respondent filed submissions dated 29.6.2026 together with authorities which I have read and considered in arriving at my decision as hereunder. ELC Case No. 15 Of 2019 (O.S) Ruling Page 9

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Analysis and Determination: 31. I have carefully considered the grounds in the application as well as the supporting affidavit and the annexures thereto, the Replying Affidavits and Grounds of Opposition in response to the application and the rival submissions in totality. 32. Consequently, it is therefore my considered view that the issues arising for determination are as follows: i. Whether the applicant has met the threshold for the grant of leave to further amend her Amended Originating Summons. ii. Who shall bear the costs of the present application. Whether the applicant has met the threshold for the grant of leave to further amend her Amended Originating Summons; 33. The first issue herein seeks to ascertain and determine whether the applicant has met the threshold for the grant of leave to further amend her Amended Originating Summons. 34. Order 8 Rule 3 of the Civil Procedure Rules provides for the amendment of pleadings with leave and states as follows: Order 8 rule 3 - Amendment of pleading with leave. (1) Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of ELC Case No. 15 Of 2019 (O.S) Ruling Page 10

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this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings. (emphasis added) 35. From the above provision, it is clear that an application for amendment may be entertained by a court at any stage of the proceedings before the final judgment is issued, including after the close of a party’s case, as seen in the present case. 36. Further, Order 8 Rule 5(1) of the Civil Procedure Rules provides for the purpose of amendment and the court’s power to allow for the amendment of pleadings. It states as follows: Order 8, rule 5 - General power to amend. 5.(1) For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just. (emphasis mine) ELC Case No. 15 Of 2019 (O.S) Ruling Page 11

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37. In essence therefore, the above provision empowers a court to allow an application for amendment upon examination of the intent and the purpose of the said proposed and/or intended amendment. A court is under a duty to allow an application for amendment where the intended amendment is aimed at assisting the court in determining the real questions in dispute or in correcting any error or defect in the pleadings/proceedings, provided the said intended amendment does not prejudice the other party. 38. The applicant herein has sought leave of the court to further amend her Amended Originating Summons to include issues touching on the illegalities involved in the removal of the caution registered by the late Thomas Ego and the alleged fraudulent transfer of the suit land to the 1 st respondent and thereafter to the 2nd respondent as well as issues touching on the validity of the Charge registered in favor of the 4 th respondent and an alleged issue of breach of constructive trust, as contained in paragraph 6 of the applicant’s Supporting Affidavit. 39. It is her claim that the said amendments, which goes beyond the issue of adverse possession are necessary for purposes of determining the real questions in dispute and a substantive determination of the suit. ELC Case No. 15 Of 2019 (O.S) Ruling Page 12

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40. The respondents on the other hand dismissed the said proposed amendments as being intent on introducing a new claim and issues which are a clear departure from the initial claim and pleadings as filed with the effect of altering the nature of the suit. Further, it is their claim that if the present application is allowed, the amendments being sought are likely to defeat the defence of limitation. 41. The Court of Appeal outlined the principles on amendment of pleadings in Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited (2013) eKLR and cited with approval the decision in of Joseph Ochieng & 2 others v. First National Bank of Chicago, Civil Appeal No. 149 of 1991 as follows:“The law on amendment of pleading in terms of section 100 of the Civil Procedure Act and Order VIA rule 3 of the repealed Civil Procedure Rules under which the application was brought was summarized by this Court, quoting from Bullen and Leake & Jacob’s Precedents of Pleading – 12 th Edition, in the case of Joseph Ochieng & 2 others v. First National Bank of Chicago, Civil Appeal No. 149 of 1991 as follows: “The ratio that emerges out of what was quoted from the said book is that powers of the court to allow amendment is to determine the true, substantive merits of the ELC Case No. 15 Of 2019 (O.S) Ruling Page 13

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case; amendments should be timeously applied for; power to so amend can be exercised by the court at any stage of the proceedings(including appeal stages);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 compensate the other side; that the proposed amendment must not be immaterial or useless or merely technical; that if the proposed amendments introduce a new case or new ground of defence it can be allowed unless it would change the action into one of a substantially different character which could more conveniently be made the subject of a fresh action; that the plaintiff 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 Limitation Acts.” 42. I have carefully considered the rival positions by the parties herein and the question that arises in my considered view is whether the issues contained in paragraph 6 of the Supporting Affidavit by the applicant and which forms the basis for the intended amendment of the plaint amounts to new facts and issues that would alter the character of the suit and introduce a new cause of action. ELC Case No. 15 Of 2019 (O.S) Ruling Page 14

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43. In answering the above question, this court has carefully looked at the annexed Amended Originating Summons, the issues raised therein as well as the reliefs sought, the grounds contained in the applicant’s supporting affidavit as well as the facts, grounds and reliefs contained in the Draft Amended Plaint annexed to the supporting Affidavit in totality. 44. It is my considered finding that the intended and/or proposed amendments sought herein, particularly on the issues of the alleged fraudulent transfers of the suit parcel to the 1st respondent and subsequently to the 2 nd respondent and the alleged removal of the caution registered by the late Thomas K. Bore are separate and distinct from a claim of adverse possession and in my view amounts to an introduction of substantive issues that would alter the substratum of the main suit herein thus an introduction of a new case of a substantially different character. 45. Further, the new issues touching on the alleged fraudulent transfers of the suit parcel to the 1 st respondent and thereafter to the 2nd respondent would in my view lead to a new ground of defence, touching on the provisions of Limitation of Actions Act and may as a result oust the jurisdiction of this court to hear and determine the suit as filed in view of the circumstances thereto. ELC Case No. 15 Of 2019 (O.S) Ruling Page 15

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46. The general rule is that amendment should be allowed if it can be made without causing injustice or prejudice to the other party that cannot be compensated by costs. The proposed amendments in the present application are in my view prejudicial to the respondents. 47. In addition, the applicant has not tendered any explanation on the inordinate delay of 7 years before filing of the present application for amendment. 48. In the premises, this court finds that the applicant has not met the threshold to warrant the grant of leave to further amend the Amended Originating Summons as sought. 49. This court also takes note of prayer nos. 2 and 3 in the present Application, touching on the conversion of the originating summons to be deemed as the plaint and for the replying affidavits by the defendants/respondents to be deemed as statement of defence and for the hearing of the main suit to proceed by way of viva voce evidence. 50. From the onset, I wish to point out that there is no statutory and/or legal underpinning providing for the said conversion. To the contrary, the practice of the court has been to issue directions that the originating summons be deemed to be ELC Case No. 15 Of 2019 (O.S) Ruling Page 16

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the plaint and the affidavit in response thereto to be deemed to be the statement of defence. These directions were issued on the 03.03.2020 whereupon the parties were further directed to comply with the provisions of the Order 11 of the Civil Procedure Rules. 51. Be that as it may, the said prayers in my considered view have since been overtaken by events. From a perusal of the court record, it is evident that the hearing of the plaintiff’s suit did proceed by way of viva voce evidence before my predecessor Hon. E. Obaga J. The deceased plaintiff, Thomas K. E. Bore testified and adduced the evidence in support of his case. In addition, 2 witnesses were called to testify in support of the plaintiff’s case and the plaintiff’s case was subsequently closed. 52. The upshot of the above is that the present application is not merited and the applicant is therefore not entitled to the grant of the orders sought. Who shall bear the costs of the application; 53. It is well settled that costs follow the event unless the court directs otherwise. 54. In the instant case, having held that the applicant has failed to meet the threshold to warrant the grant of the orders sought, this court finds that the 1 st to 4th respondents are ELC Case No. 15 Of 2019 (O.S) Ruling Page 17

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entitled to costs of defending the present application to be borne by the applicant. CONCLUSION: 55. In view of the foregoing, it is the finding of this court that the Notice of Motion Application dated 11th March, 2026 is not merited and is hereby dismissed with costs to the 1st to 4th defendants/respondents. 56. It is so ordered. DATED, SIGNED and DELIVERED in ELDORET this 1ST day of OCTOBER, 2026. HON. C. K. YANO JUDGE Ruling delivered in the virtual presence of: Mr. Mburu for the Plaintiff/Applicant. Ms. Kemboi holding brief for Ms. Odwa for 2 nd, 3rd & 4th Defendants. Ms. Omuya holding brief for Mr. Kipkemboi for 1 st Defendant. Ms. Rop for 5th Defendant. Court Assistant – Laban ELC Case No. 15 Of 2019 (O.S) Ruling Page 18

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