https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4891

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BUSIA** **ELC LOS NO. E038 OF 2025** **MARGARET NYONGESA …………………….………… 1ST APPLICANT** **ELIAKIM OTIENO OKWANYI ………………………… 2ND APPLICANT** **JOANNES ONYANGO NYAMBADI ………..…………. 3RD APPLICANT** **= VERSUS =** **SHADRACK OTIENO ……………………..……………… RESPONDENT** **RULING** **INTRODUCTION** 1. Before this Court are two applications arising from the same suit, namely the Respondent’s Notice of Motion dated 19th January 2026 seeking to strike out the Originating Summons dated 7th August 2025, and the Applicants’ Notice of Motion dated 12th May 2026 seeking leave to amend the said Originating Summons. 2. The Court shall first consider the application dated 19th January 2026, thereafter, the application dated 12th May 2026, and finally render its determination on the two applications together. **THE APPLICATION DATED 19TH JANUARY 2026** 1. The first application for determination is the Notice of Motion dated 19th January 2026 brought by the Respondent/Applicant, Shadrack Otieno, seeking orders that the Applicant’s Originating Summons dated 7th August 2025 be struck out with costs, and that the costs of the application be provided for. 2. The application is expressed to be brought under **Sections 1A, 1B** and **3A** of the **Civil Procedure Act** and **Order 2 Rule 15(b), (c)** and **(d)** of the **Civil Procedure Rules**. It is supported by the affidavit of **Shadrack Otieno** sworn on 19th January 2026. 3. The Respondent deposes that the Applicants’ claim is frivolous, vexatious and an abuse of the Court process because it has been brought against a party who is no longer the registered proprietor of the suit property and is therefore incapable of transferring title should the Applicants succeed. 4. The Respondent stated that he transferred **L.R. NO MARACHI/BUMALA/1885** to Pius Siangani Odak on 8th July 2025 pursuant to a sale transaction. Prior to that transfer, he had purchased the land from Henry Johnstone Obatsa in February 2025. 5. He further states that at the time of his purchase, the suit property was vacant and was not occupied or possessed by the Applicants. The Applicants reside and cultivate a different parcel of land on which their homesteads stand, with its own access road. 6. That the Applicants’ relative, Joseph Nyamori Okongo, was previously the registered proprietor of parcel **NO** **MARACHI/BUMALA/1855**, which he later transferred to another purchaser. 7. Since he is no longer the registered owner of parcel **NO** **MARACHI/BUMALA/1885**, he cannot confer title upon the Applicants even if they were to succeed in their claim for adverse possession. 8. On those grounds, the Respondent contends that the Originating Summons is misdirected, fatally defective for misjoinder, scandalous, frivolous and vexatious, and should therefore be struck out. **RESPONSE BY THE APPLICANTS:** 1. The Applicants opposed the application by filing Grounds of Opposition dated 22nd June 2026. 2. Their position is that the Respondent admits having been the proprietor of **L.R. NO MARACHI/BUMALA/1885**. The Applicants’ claim for adverse possession covers the period during which the Respondent was the registered proprietor. The Applicants have already taken steps to regularize the proceedings by filing an application seeking leave to amend the Originating Summons so as to join the current registered proprietor. **SUBMISSIONS:** 1. The Respondent submits that the application to strike out is unopposed because, despite service, the Applicants did not file a replying affidavit or other response within the prescribed time. 2. Counsel argues that a claim for adverse possession must be directed against a person capable of transferring legal title to the successful claimant. Since the Respondent transferred the suit property before the suit could be determined, he no longer has any legal interest capable of being conveyed to the Applicants. Consequently, the proceedings against him serve no useful purpose and are bound to fail. 3. It is further submitted that maintaining proceedings against a person who has ceased to own the land amounts to pursuing the wrong party, rendering the Originating Summons frivolous, vexatious and an abuse of the Court process. 4. The Applicants, in opposing the application dated 19th January 2026, submit that the Respondent’s application raises contested factual issues concerning ownership of the suit property and the effect of the transfer. Such issues cannot properly be determined summarily. 5. They rely on the principles set out in **Mukisa Biscuit Manufacturing Co. Ltd -v- West End Distributors Ltd (1969) EA 696**, where it was held that a Preliminary Objection must raise a pure point of law capable of disposing of the matter without the need to ascertain facts. 6. The Applicants further cite **Independent Electoral and Boundaries Commission -v- Jane Cheperenger & 2 Others (2015) eKLR**, in which the Supreme Court reaffirmed that a Preliminary Objection must not be founded upon disputed facts requiring evidentiary proof. 7. The Applicants therefore contend that, since the Respondent himself acknowledges the transfer of the property and they have already sought leave to amend the Originating Summons to join the current registered proprietor, the striking out application should not be allowed. **ANALYSIS AND DETERMINATION:** 1. The Court has considered the Notice of Motion dated 19th January 2026, the affidavit in support, the Grounds of Opposition and the rival submissions. In its view, the following issues arise for determination: 2. **Whether the Originating Summons is fatally defective for having been instituted against a person who is no longer the registered proprietor of L.R. No. MARACHI/BUMALA/1885.** 3. **Whether the institution and continued prosecution of the suit against the Respondent amounts to a frivolous, vexatious and an abuse of the Court process warranting the striking out of the Originating Summons.** **On whether the Originating Summons is fatally defective for having been instituted against a person who is no longer the registered proprietor of L.R. NO. MARACHI/BUMALA/1885.** 1. The Respondent contends that the Originating Summons ought to be struck out because he transferred the suit property to a third party on 8th July 2025 and consequently ceased to be the registered proprietor. It is his case that, having divested himself of ownership, he is incapable of transferring the property to the Applicants should they succeed in their claim for adverse possession. He therefore argues that the suit is incompetent and fatally defective. 2. The Applicants, on the other hand, maintain that the Respondent was the registered proprietor during the period upon which their claim for adverse possession is founded and that the subsequent transfer of the property does not extinguish rights that had already accrued. They further contend that the question of ownership and the effect of the transfer are matters requiring evidence and are therefore not amenable to summary determination. 3. The Court has considered the rival arguments. It is settled law that the jurisdiction to strike out pleadings under **Order 2 Rule 15** of the **Civil Procedure Rules** is a draconian one and ought to be exercised sparingly and only in the clearest of cases. 4. In the case of **Anthony Bundotich Cheboiywo -v- Reuben Wahome Wanjohi & 2 others (2022) KEELC 1398 (KLR)** the Court provided that: **“The striking out of a party’s pleadings before the case is heard and determined on merits is a draconian step that must only be taken as a last step and even then, when it is evident that the suit is so hopeless that it cannot be resuscitated even by an amendment. The Court of Appeal in the case of DT Dobie & Company (Kenya) Ltd -vs- Muchina (1982) KLR 1 at page 9 expressing the powers that a Court wields in striking out or dismissing a suit summarily stated thus:- “No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a Court of justice ought not to act in darkness without the full facts of a case before it.”** 1. The Court further observes that a claim for adverse possession accrues against the registered proprietor whose title is alleged to have been extinguished by operation of **Sections 7, 13** and **38** of the **Limitation of Actions Act**. The mere fact that such proprietor subsequently transfers the property does not, without more, render proceedings already instituted against him incompetent. 2. Consequently, whether the Respondent’s transfer of the suit property defeated the Applicants’ accrued claim is itself a substantive question that can only be determined upon a full examination of the evidence relating to the period of occupation, when time began to run, whether the statutory period had matured before the transfer, and the legal effect of that transfer. 3. Moreover, the Respondent’s cessation as the registered proprietor does not, by itself, render the Originating Summons fatally defective. **Order 1 Rule 9** of the **Civil Procedure Rules** expressly provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, while **Order 1 Rule 10(2)** empowers the Court, at any stage of the proceedings, to add any party whose presence is necessary for the effectual and complete adjudication of all the issues before it. These provisions underscore the principle that procedural defects relating to parties should not ordinarily defeat substantive claims. 4. In the present case, it is not disputed that the Respondent was at one time the registered proprietor of the suit property. His objection is founded solely on the subsequent transfer of the land. Whether that transfer extinguished the Applicants’ claim or whether the current registered proprietor ought to be joined are matters touching on the proper constitution of the suit and not its competence. Such matters are curable under the Civil Procedure Rules and do not justify the drastic remedy of striking out the Originating Summons. 5. Accordingly, the Court finds that the Respondent’s transfer of the suit property did not, without more, render the Originating Summons fatally defective. The first issue is therefore answered in the negative. The Respondent has not demonstrated that the suit is so hopeless or incurably defective as to warrant its summary termination under **Order 2 Rule 15** of the **Civil Procedure Rules**. ### **On whether the institution and continued prosecution of the suit against the Respondent amounts to a frivolous, vexatious and an abuse of the Court process so as to warrant the striking out of the Originating Summons.** 1. The Respondent submits that the Originating Summons is frivolous, vexatious and an abuse of the Court process because it has been instituted against a person who is no longer the registered proprietor of the suit property and who is therefore incapable of conveying title to the Applicants. He contends that maintaining the suit against him serves no useful purpose and unnecessarily subjects him to litigation despite having divested himself of all proprietary interest in the suit land. 2. The Applicants, on their part, contend that the Respondent’s argument is premised on disputed facts relating to the transfer of the suit property and its legal effect on their claim for adverse possession. They maintain that their claim accrued during the period when the Respondent was the registered proprietor and that the issues raised cannot be determined summarily. They further argue that the existence of a subsequent transfer does not render the proceedings frivolous or an abuse of the Court process. 3. The Court has considered the parties’ respective positions. It is trite that striking out a pleading on the grounds that it is frivolous, vexatious or an abuse of the Court process is a discretionary remedy that must be exercised with great circumspection. Such jurisdiction is reserved for plain and obvious cases where the suit is clearly unsustainable and incapable of being salvaged. 4. In **DT Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1**, the Court of Appeal cautioned that the power to strike out pleadings should be exercised sparingly and only in the clearest of cases. **Madan JA** observed that a Court ought not to embark upon the merits of a case at an interlocutory stage where the facts are contested, but should instead allow the parties an opportunity to present their evidence at trial. 5. Applying those principles to the present case, the Court is not persuaded that the Originating Summons is frivolous, vexatious or an abuse of the Court process. The Applicants seek a declaration that they have acquired title to the suit property by adverse possession, a claim that can only be determined upon consideration of evidence relating to the nature, extent and duration of their occupation and whether the statutory period had accrued before the transfer of the property. These are substantive issues that cannot be resolved merely by reference to the Respondent’s assertion that he is no longer the registered proprietor. 6. Moreover, the Respondent has not demonstrated that the proceedings were instituted in bad faith, for an improper purpose, or in a manner intended to misuse the judicial process. The mere fact that ownership of the suit property changed hands after the alleged accrual of the Applicants’ claim does not, without more, render the proceedings vexatious or an abuse of the process of the Court. On the contrary, the dispute raises genuine questions of law and fact that merit judicial determination. 7. Accordingly, the Court finds that the Respondent has failed to establish that the Originating Summons is frivolous, vexatious or constitutes an abuse of the Court process within the meaning of **Order 2 Rule 15** of the **Civil Procedure Rules**. The second issue is therefore answered in the **negative**. 8. The upshot is that the Notice of Motion dated 19th January 2026 lacks merit and is hereby dismissed. **THE NOTICE OF MOTION DATED 12TH MAY 2026** 1. The second application before the Court is the Notice of Motion dated 12th May 2026 brought by the Applicants. By the application, the Applicants seek leave to amend the Originating Summons dated 7th August 2025 to enjoin Pius Siangani Odak, the current registered proprietor of **L.R. NO MARACHI/BUMALA/1885**, as the 2nd Respondent. 2. The application is supported by the affidavit of the 1st Applicant sworn on 12th May 2026. 3. The Applicants depose that after filing the Originating Summons, they discovered that the Respondent had transferred the suit property to Pius Siangani Odak, who is now the registered proprietor. They aver that the transfer was effected while their claim for adverse possession had already accrued and that the presence of the current registered proprietor is necessary to enable the Court to effectually and completely determine all the issues in controversy. 4. They further state that the proposed amendment merely seeks to bring the current proprietor before the Court and does not introduce a new cause of action or alter the nature of the Applicants’ claim for adverse possession. The amendment is therefore necessary for the just determination of the dispute and will occasion no prejudice to the Respondent that cannot be compensated by costs. ### **RESPONSE BY THE RESPONDENT** 1. The application is opposed through the **Grounds of Opposition dated 19th May 2026.** The Respondent states that the application lacks merit and has been belatedly filed to delay the hearing of the Respondent’s application for striking out, and that even if the applicant has freedom to amend his pleadings, the same should be refused if it seeks to pre-empt or prejudice the Respondent’s quest for the suit against him to be struck out. And prayed that the application dated 12th May be dismissed with costs. ### **PARTIES’ SUBMISSIONS** 1. The Applicants submit that the Court possesses wide discretionary powers under **Order 1 Rule 10(2)** and **Order 8 of the Civil Procedure Rules** to allow amendments and joinder of parties at any stage of the proceedings where such amendments are necessary for the effectual and complete adjudication of the issues in dispute. 2. They argue that the proposed amendment neither introduces a new cause of action nor changes the substance of the claim, which remains one for adverse possession. The amendment merely seeks to enjoin the current registered proprietor so that any orders ultimately issued by the Court may effectively bind the person presently holding title to the suit property. The Applicants further submit that amendments should generally be freely allowed where no irremediable prejudice will be occasioned to the opposite party and rely on authorities emphasizing that procedural rules should facilitate, rather than impede, the determination of disputes on their merits. 3. The Respondent, on the other hand, submits that the application is an attempt to cure a suit that was incompetent from its inception. He argues that since the suit was filed against a party who no longer owned the property, there was no competent cause of action capable of amendment. Counsel submits that an amendment cannot breathe life into a suit that is fundamentally defective and urges the Court to reject the application as an abuse of the Court process. **ANALYSIS AND DETERMINATION** 1. Having considered the Notice of Motion dated 12th May 2026, the supporting affidavit, grounds of opposition and the rival submissions, the Court is of the view that the following issues arise for determination: 2. **Whether the Applicants have made out a case for leave to amend the Originating Summons.** 3. **Whether the proposed joinder of Pius Siangani Odak as the 2nd Respondent is necessary for the just, effectual and complete determination of the issues in controversy.** **On whether the Applicants have made out a case for leave to amend the Originating Summons** 1. The Applicants seek leave to amend the Originating Summons and the supporting affidavit to reflect the change in ownership of the suit property by joining **Pius Siangani Odak**, the current registered proprietor, as the 2nd Respondent. They contend that the proposed amendment does not alter the nature of their claim, which remains one for adverse possession, but merely seeks to bring before the Court a necessary party against whom any decree of the Court may ultimately be enforced. 2. The Respondent opposes the application on the ground that the suit was incompetent from the outset, having been instituted against a person who had already transferred the suit property. He submits that the Applicants cannot use an amendment to revive a defective suit or introduce a new cause of action against a new party. 3. The Court has considered the rival arguments. The law governing amendments of pleadings is well settled. Under **Order 8 Rule 3(1)** of the **Civil Procedure Rules**, the Court has an unfettered discretion to allow amendments at any stage of the proceedings on such terms as may be just, provided the amendment is necessary for determining the real questions in controversy between the parties. 4. The guiding principles governing amendments were succinctly set out by the Court of Appeal in **Central Kenya Ltd -v- Trust Bank Ltd & 5 Others [2000] eKLR**, where the Court held that: “**It is also trite law that as far as possible a litigant should plead the whole of the claim which he is entitled to make in respect of his cause of action. Otherwise the Court will not later permit him to reopen the same subject of litigation (see O.II rule 1 of the Civil Procedure Rule) only because they have from negligence, inadvatence or accident omitted that part of their case. Amendment of pleadings and joinder of parties is meant to obviate this. 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).”** 1. Applying those principles to the present application, the Court finds that the proposed amendment does not introduce a new or inconsistent cause of action. The Applicants’ claim remains one for adverse possession over **L.R. NO MARACHI/BUMALA/1885**. The amendment merely seeks to reflect the current status of the title by bringing before the Court the person in whom the legal interest is presently vested. The factual foundation of the suit, namely the Applicants’ alleged occupation of the suit property for the statutory period, remains unchanged. 2. Further, the application was brought before the hearing of the Originating Summons, and there is no evidence that the Respondent or the intended 2nd Respondent would suffer prejudice incapable of being remedied by an award of costs. On the contrary, allowing the amendment would facilitate the complete and effectual determination of the dispute and obviate the need for separate proceedings involving the current registered proprietor. 3. The Court also notes that it has already found, in determining the application dated 19th January 2026, that the Originating Summons is not fatally defective merely because the Respondent ceased to be the registered proprietor. It follows that the proposed amendment is not an attempt to revive an incompetent suit, but rather a procedural step intended to ensure that all necessary parties are before the Court. 4. Accordingly, the Court is satisfied that the Applicants have met the threshold for the grant of leave to amend the Originating Summons and the supporting affidavit under **Order 8 Rule 3** of the **Civil Procedure Rules**. The first issue is therefore answered in the affirmative. **On whether the proposed joinder of Pius Siangani Odak as the 2nd Respondent is necessary for the just, effectual and complete determination of the issues in controversy.** 1. The Applicants seek to join Pius Siangani Odak as the 2nd Respondent on the ground that he is the current registered proprietor of **L.R. NO MARACHI/BUMALA/1885**. They contend that any determination regarding ownership of the suit property would directly affect his proprietary interests and that his presence before the Court is therefore necessary to enable the Court effectually and completely adjudicate upon all the questions involved in the suit. 2. The applicable law is **Order 1 Rule 10(2)** of the **Civil Procedure Rules**, which provides that the Court may, at any stage of the proceedings, either upon or without an application, order that the name of any person who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely adjudicate upon and settle all questions involved in the suit, be added as a party. 3. The test is therefore not whether the intended party was the proprietor at the time the suit was filed, but whether his presence is necessary for the complete and effective determination of the dispute. 4. In the present case, it is not disputed that Pius Siangani Odak is the current registered proprietor of the suit property. The Applicants seek a declaration that they have acquired title to the land by adverse possession. Any order granting such relief would inevitably affect the title presently held by the intended 2nd Respondent. It would therefore be contrary to the principles of natural justice for the Court to determine a claim capable of affecting his proprietary rights in his absence. 5. Further, joining the current registered proprietor will avoid the risk of parallel proceedings and ensure that any decree ultimately issued by the Court is binding upon all persons with a direct interest in the suit property. The joinder will also facilitate the complete and final determination of the controversy between the parties. 6. The Court is therefore satisfied that the presence of Pius Siangani Odak is necessary for the just, effectual and complete adjudication of the issues arising in the Originating Summons. The second issue is accordingly answered in the affirmative. ### **DECLARATION AND FINAL ORDERS** 1. The Court is satisfied that the Applicants have established sufficient grounds for the exercise of this Court’s discretion under **Order 8 Rule 3** and **Order 1 Rule 10(2)** of the **Civil Procedure Rules** to amend their Originating Summons. 2. Accordingly, the Court finds the application to be meritorious, and I hereby make the following orders: 3. **The Notice of Motion dated 12th May 2026** **is** **allowed**. 4. **The Notice of Motion dated 19th January 2026 is dismissed.** 5. **The Applicants are granted leave to amend the Originating Summons dated 7th August 2025.** 6. **The costs to the applicant.** **Ruling dated, signed and delivered in open Court on this 30th day of July 2026.** **C. MUGAMBI** **JUDGE** **30TH JULY 2026**