https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1321

Kamundi & 2 others v Registered Trustee, Gospel of God Church & 5 others (Civil Appeal 198 of 2018) [2026] KECA 1321 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KECA 1321 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal 198 of 2018 W Karanja, LK Kimaru & AO Muchelule, JJA July 3, 2026 Between Moses Kamundi 1st Appellant Francis Mucheru 2nd Appellant Registered Trustee, Gospel of God Church International 3rd Appellant and Registered Trustee, Gospel of God Church 1st Respondent Elias Rimbera Mborothi 2nd Respondent Zaveria Nguru Mborothi 3rd Respondent Nora Ntui Mutai 4th Respondent The Land Registrar, Meru 5th Respondent The Hon. Attorney General 6th Respondent (Being an appeal from the Ruling and Order of the Environment and Land Court of Kenya at Meru (Lucy N. Mbugua J.) dated 3rd October, 2018 in ELC Cause No. 114 of 2011 Environment & Land Case 114 of 2011 ) Judgment 1.The suit before the Environment and Land Court at Meru involved a dispute over a parcel of land, land reference No. Ntima/Igoki/4485, hereinafter referred to as ‘the suit property’. The 1st respondent alleged that the suit property, which was purchased by the 1st respondent church, Gospel of God Church, was fraudulently transferred to the 3rd appellant church, Gospel of God Church International, a splinter group of the 1st respondent church, which was carrying on business in a name similar to that of the 1st respondent. The suit property was subsequently transferred to the 4th respondent. 2.During the hearing of the 1st respondent’s case, the appellants, Moses Kamundi, Gidiel Kirimi and Registered Trustee Gospel of God Church International, filed an application before the Environment and Land Court (ELC) dated 2nd July, 2018, seeking leave to amend their statement of defence. The application was based on the ground that there was need to amend the statement of defence to include a counter-claim, to enjoin the Registrar of Societies as a party to the suit, so as to enable the court effectively adjudicate the case. 3.The application was opposed. Counsel for the 1st respondent stated that the application was frivolous and was lodged for purposes of derailing the hearing of the main suit. He maintained that the application ought to have been lodged during the pre-trial process. 4.After hearing the parties, the learned Judge, in a ruling dated 3rd October, 2018, dismissed the appellants’ application for lack of merit. 5.Aggrieved by this decision, the appellants lodged this appeal citing three grounds of appeal in their memorandum of appeal. They faulted the learned Judge for dismissing their application dated 2nd July, 2018, which according to them was merited. They were aggrieved by the ruling of the learned Judge, stating that it occasioned them a miscarriage of justice, and curtailed their rights to a fair hearing. 6.The appeal was canvassed by way of written submissions. Counsel for the appellants submitted that the dismissal of the application hindered the very purpose of the court, which is to adjudicate issues fairly without hindering any party from ventilating their case. He urged that draft amended statement of defence and counterclaim raised pertinent issues that needed to be canvassed before the court. He submitted that the general guiding principle in such applications is that courts will generally freely grant a party leave to amend their pleadings. To buttress his arguments, he cited a decision of the High Court (Odunga J) in Gladys Nduku Nthuki vs Letshego Kenya Limited; Mueni Charles Maingi (Intended Plaintiff) [2022] eKLR; and the case of The British India General Insurance Co Ltd vs G M Parmar & Co [1966] EA . He urged this court to allow the appeal as prayed. 7.The 1st respondent filed written submissions dated 14th August, 2023 after the court had heard the application in plenary. Nevertheless, in the interest of justice, we shall consider the said submissions. 8.Counsel for the respondents made submissions to the effect that the record of appeal as filed was incompetent, as it did not include the 5th and 6th respondents’ statements of defence, as well as the 1st respondent’s reply to the statements of defence. Counsel argued that the appellants’ draft amended statement of defence did not raise any pertinent issues for determination. He asserted that there was inordinate delay on the part of the appellants in filing the application before the superior court, as it was lodged nine years after the suit was instituted, which delay had not been justified. Counsel stated that the Registrar of Societies was properly represented by the 6th respondent, as a party to the suit. He maintained that the appellants’ application was an afterthought, meant to delay the final determination of the suit. He urged this court to dismiss the appeal for lack of merit. 9.This being a first appeal, it is the duty of this court to analyze and re-assess the evidence on record and reach its own conclusions. In Selle v Associated Motor Boat Co [1968] EA 123, the court expressed itself as follows:“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence, or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 EACA 270. “ 10.Having evaluated the record of appeal, as well as submissions by appellants and the 1st respondent, the issue arising for determination by this court is whether the appellants’ application dated 2nd July, 2018 is merited. 11.This is an interlocutory appeal. The power of the court to allow a party’s application for leave to amend pleadings is discretionary. As was stated in the case of Mbogo & another vs Shah [1968] EA, p 15;“An appellate court will not interfere with the exercise of the trial court’s discretion unless it is satisfied that the court in exercising its discretion misdirected itself in some matters and as a result arrived at a decision that was erroneous, or unless it is manifest from the case as a whole that the court has been clearly wrong in the exercise of judicial discretion and that as a result there has been misjustice.” 12.Section 100 of the Civil Procedure Act grants the trial court power to allow amendments of pleadings at any point during trial if the said amendment will aid the court in determining the dispute at hand. It provides thus:“The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding.” 13.Further, this court in the case of Central Kenya Ltd vs Trust Bank Ltd & 5 others [2000] eKLR observed thus:“Hence the guiding principle in applications for leave to amend is that all amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs (see, Beoco Ltd v Alfa Laval Co Ltd [1994]4 All ER 464).” 14.In the instant case, the appellants sought to amend their statement of defence to include a counter-claim, which would enjoin the Registrar of Societies as a party to the suit. It was the appellants’ case that would have enabled the Court to effectively adjudicate the matters in dispute. It is important to note that one of the issues in dispute relates to registration of the Gospel of God Church and the Gospel of God Church International by the Registrar of Societies. The 1st respondent, who is the plaintiff in the case before the ELC, contends in his pleadings that the 1st and 2nd appellants ‘defected’ from the Gospel of God Church and registered another church by the name Glorious Gospel of God Church which they later changed to Gospel of God Church International. The 1st respondent asserted that this was done with the intention to deceive the Registrar of Societies and fraudulently obtain properties belonging to the 1st respondent. We are satisfied that the Registrar of Societies is an important and necessary party in the suit as it may aid the ELC adjudicate the issues in dispute. 15.Further, the orders sought in the counter claim relate to the suit property. We see no cogent reason why the trial court disallowed the appellants’ application for amendment of their pleadings. 16.The 1st respondent’s response does not disclose any prejudice they will likely suffer if the court allows the application for amendment of the defence. In any event, they will have the opportunity to respond to the amended defence and counter- claim. Further, without any evidence that the application has been made in bad faith, we see no reason why the appellants should be denied the chance to amend their statements of defence. 17.From the foregoing, we find that the appeal is merited. It is hereby allowed. The ruling and subsequent order of the ELC delivered on 3rd October, 2018, is hereby set aside, and substituted with an order of this court granting the appellants leave to amend their defence to include the counterclaim as prayed in prayer 2 of the notice of motion dated 2nd July, 2018. The appellants have 14 days from the date of this Judgment to file their amended statement of defence. 18.The 1st respondents shall bear costs of the appeal. DATED AND DELIVERED AT NYERI THIS 3RD DAY OF JULY, 2026.W. KARANJA...................................JUDGE OF APPEALL. KIMARU................................... JUDGE OF APPEALA. O. MUCHELULE...................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR