https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4942

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELC CASE NO. E017 OF 2025** **SAMUEL ODUOR OCHIENG** **JANET AKINYI OCHIENG** **BEATRICE APONDI OCHIENG** (All suing as administrators and legal representatives of the estate of **NORBERT OCHIENG OTIENO – Deceased)PLAINTIFFS/APPLICANTS** **VERSUS** **PHILIP ACHIENG OWANGDEFENDANT/RESPONDENT** **R U L I N G** 1. Before me for determination is the plaintiffs’/applicants’ Notice of Motion dated 5th November 2025 and filed on even date, expressed to be brought pursuant to sections 1A, 1B and 3A of the Civil Procedure Act, Order 8 rule 3(3) and Order 51 rule 1 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law. 2. The motion seeks the following substantive orders: i. **THAT this honourable court be pleased to grant leave to the plaintiffs/applicants to amend the plaint in terms of the annexed draft amended plaint;** **ii. THAT the plaintiffs’/applicants’ draft amended plaint be deemed as duly filed upon payment of the requisite filing fees; and** **iii. THAT the costs of this application be provided for.** 3. By way of brief background, this suit was commenced by a plaint dated 17th March 2025. The plaintiffs plead that until his death on 5th January 2012, Norbert Ochieng Otieno (“the deceased”) was the allottee and beneficial owner of residential plot No. 179 Migosi Site and Service Scheme, Kisumu Municipality, together with the residential premises erected thereon, and that the suit property forms part of his unadministered estate. They further plead that in or about November 2020 the defendant unlawfully entered upon and took possession of the suit property and has since been collecting rent from the tenants in occupation, conduct which they characterise as trespass and as intermeddling with the estate of a deceased person. At paragraph 5 of the plaint they set out particulars of illegality and fraud on the part of the defendant, namely passing himself off as the owner of the suit property, illegally drawing rent from it, and alienating to himself the properties of the deceased. They seek, among other reliefs, a declaration that the suit property forms part of the estate, a permanent injunction, an account of the rents collected, mesne profits and damages for trespass. 4. Simultaneously with the plaint, the plaintiffs took out a notice of motion dated 17th March 2025 seeking interlocutory injunctive relief. The defendant opposed that application by a replying affidavit sworn on 11th April 2025. In that affidavit, and while acknowledging that he is in possession of the premises, the defendant deposed that he is the registered proprietor of an absolute interest in land parcel KISUMU/MANYATTA “A”/5134, which he says he purchased from Josephine Achieng Ochieng, the widow of the deceased and the mother of the plaintiffs, who presented herself to him as the personal representative of the deceased’s estate. It is that disclosure which, on the applicants’ account, has given rise to the present application. 5. It is common ground that the defendant has filed a defence to the plaint and that pleadings are closed. The suit has not been heard and no hearing date has been taken. **The Application** 6. The motion is premised on the grounds set out on its face and is supported by the affidavit of Samuel Oduor Ochieng sworn on 5th November 2025, he being the 1st plaintiff and swearing with the authority of his co-administrators, that authority being annexed as “SOO-1”. 7. The gravamen of the applicants’ case is this. The cause of action herein relates, inter alia, to the manner in which the defendant came to be in occupation of plot No. 179 Migosi Site and Service Scheme, Kisumu Municipality. By letters dated 1st December 2020 and 6th May 2021, annexed as “SOO-2(a)” and “SOO-2(b)”, the defendant admitted being in possession of the suit property and indeed issued the tenants with a notice of change of ownership and of rent increment. Thereafter, in his replying affidavit sworn on 11th April 2025, annexed as “SOO-3”, the defendant asserted a freehold title in parcel KISUMU/MANYATTA “A”/5134 while at the same time acknowledging possession of the suit property. 8. Confronted with two apparently competing descriptions of what may be the same premises, the applicants depose that on the advice of counsel they retained the services of a licensed land surveyor to establish whether the suit property, comprising the rental houses, stands on land parcel KISUMU/MANYATTA “A”/5134 or on plot No. 179 Migosi Site and Service Scheme, Kisumu Municipality. Reboa Geo Limited, through Eliud O. Ogembo, Licensed Land Surveyor No. 270, carried out the exercise and produced a report dated 4th August 2025, annexed as “SOO-4”. 9. That report concludes, in summary, that the plot shown as No. 179 on the approved Part Development Plan of Migosi Site and Service Scheme – Phase One (Reference No. N9/93/3) and the parcel shown as No. 5134 on Preliminary Index Diagram Sheet 5 of the Manyatta “A” registration section are one and the same plot on the ground; that plot No. 179 was allocated to Norbert Ochieng Otieno by a letter of allotment dated 28th February 2003 under leasehold tenure; that the change of tenure from leasehold to freehold was effected on 17th May 2016; and that parcel KISUMU/MANYATTA “A”/5134, being an excision from KISUMU/MANYATTA “A”/5023 which stood registered in the name of the Municipal Council of Kisumu, was registered in the defendant’s name on 12th November 2020, with a title deed issuing on the same date. 10. On the strength of that report the applicants say that they must now seek further reliefs, in particular the cancellation of the freehold title and the reversion of the suit property to leasehold tenure, and that such reliefs cannot be granted in the absence of the Land Registrar and of the other public entities and officers responsible for the land register and the cadastral records. Hence the proposed amendment, which seeks to enjoin the County Government of Kisumu, the County Land Registrar Kisumu, the County Surveyor Kisumu (National Government) and the Honourable Attorney General as the 2nd, 3rd, 4th and 5th defendants respectively, to plead particulars of collusion, illegality and fraud, and to seek consequential declaratory and rectificatory reliefs. The draft amended plaint is annexed as “SOO-5”. 11. The applicants maintain that the amendment is sought in good faith and before the hearing of the suit; that it does not alter the nature of the claim but merely crystallises the real issues in controversy; and that any prejudice occasioned to the defendant is capable of being compensated by an award of costs. **The Response** 12. The application is opposed. The defendant/respondent filed grounds of opposition dated 18th November 2025 through the firm of Omondi, Abande & Company Advocates, in which he contends: i. THAT the application is incompetent, fatally defective, frivolous and vexatious and ought to be dismissed with costs; ii. THAT the application is an abuse of the court process and bad in law and does not meet the threshold of the orders sought; iii. THAT the conversion of interest in land from freehold to leasehold cannot be based solely on the advice and opinion of counsel and surveyor as alleged in paragraph 10 of the supporting affidavit; and iv. THAT the application is a clear abuse of the court process and a tactic which is intended to create a legal morass and frustrate the defendant. 13. On the foregoing grounds the defendant prays that both the suit and the application be struck out with costs. **Submissions** ***(i) The Applicants’ submissions*** 14. The applicants filed written submissions dated 19th May 2026 through the firm of Ouma Njoga & Company Advocates. Counsel anchored the application on section 100 of the Civil Procedure Act as read with Order 8 rule 5 of the Civil Procedure Rules, 2010, and framed two issues for determination, namely whether the applicants ought in the interest of justice to be granted leave to amend as prayed, and what orders ought to be made as to costs. 15. On the first issue, counsel submitted that the applicants seek to have the suit determined on the basis of the true state of the facts so as to crystallise the real issues in controversy; that the respondent, having earlier admitted occupation of plot No. 179, now asserts a freehold title in parcel KISUMU/MANYATTA “A”/5134; that the surveyor established the two to be one and the same on the ground; and that the reliefs of cancellation of the freehold title and rectification of the register can only be sought against the Land Registrar, who must therefore be enjoined. Reliance was placed on **Ochieng and Others v First National Bank of Chicago, Civil Appeal No. 149 of 1991; Institute for Social Accountability & another v Parliament of Kenya & 2 others; Commission for the Implementation of the Constitution (Interested Party) [2014] KEHC 7356 (KLR); Eastern Bakery v Castelino (1958) E.A. 461; the dictum of Bramwell LJ in Tildesley v Harper (1878) 10 Ch. D. 393; Meme v Republic [2004] 1 KLR 637;** and Order 1 rule 3 of the Civil Procedure Rules on joinder of defendants. 16. Counsel further submitted that the amendment has been sought before the first hearing of the suit and therefore occasions no prejudice; that no mala fides has been demonstrated; and that as to ground 3 of the grounds of opposition, the question whether the conversion of tenure was regular is precisely the matter which ought to be ventilated at a full hearing with the relevant parties called to testify, which is what necessitates the intended amendment. ***(ii) The Respondent’s submissions*** 17. The respondent filed written submissions dated 15th June 2026 through the firm of Omondi, Abande & Company Advocates, framing two issues, namely whether the application is merited and who ought to bear the costs of it. 18. Counsel began by accepting the general principle. Citing **Bosire Ongero v Royal Media Services [2015] eKLR,** he acknowledged that the power to amend pleadings may be exercised at any stage of the proceedings before or at the trial, after the trial, and even after judgment or on appeal and that amendments are freely allowed. He submitted, however, that the right to amend is neither absolute nor unconditional, and invoked the principles collected from **Mulla, the Code of Civil Procedure, 18th Edition, Volume 2 at pages 1751–1752, as adopted in Coffee Board of Kenya v Thika Coffee Mills Limited & 2 others [2014] eKLR:** in particular, that an amendment must not alter or substitute the cause of action upon which the suit was founded; that inconsistent, contradictory or mutually destructive allegations of fact may not be introduced by amendment; that amendments causing prejudice to the other side which cannot be compensated in costs ought not to be allowed; and that amendments of a claim or relief barred by time should not be allowed. 19. The substance of the opposition was that the draft amended plaint does not clarify the existing claim but supplants it. The original plaint, it was submitted, raised a cause of action rooted entirely in the law of succession and estate administration, namely that the defendant was intermeddling with the unadministered estate of the deceased by trespassing upon and taking possession of plot No. 179 Migosi Site and Service Scheme. The draft amended plaint, by contrast, alleges a fraudulent scheme involving five defendants and impugns a statutory process of title registration carried out in 2016 and 2020: it pleads the unlawful alteration of the registry index map sheets, an illegal conversion of a leasehold interest into freehold tenure, the fraudulent incorporation of the suit property into KISUMU/MANYATTA “A”/5134 and the issuance of an illegal and null title deed, and it seeks rectification of the registry index map and cancellation of the existing title. That, counsel submitted, would be to permit the filing of an entirely new and distinct suit behind the veil of an amendment, contrary to Order 8 rule 5(1). Reliance was placed on **D.T. Dobie & Company (Kenya) Ltd v Muchina & another [1982] KLR 1, Ngugi v Kagiri [2014] eKLR**, the commentary of Chitaley and Rao upon the Indian Code of Civil Procedure at page 2218, and the Ugandan decision in **Ntungamo District Local Council v John Karazarwe [1997] 111 KALR 52.** 20. Secondly, counsel submitted that the intended claim is time-barred. He contended that under the Limitation of Actions Act (Cap 22) an action founded on fraud must be brought within three years from the date on which the plaintiff discovered the fraud or could with reasonable diligence have discovered it; that the alleged fraudulent conversion of title occurred in 2016 and 2020; and that the correspondence annexed to the plaintiffs’ own list of documents establishes actual knowledge as early as 2021. He relied in that regard upon the defendant’s letter to the tenants dated 1st December 2020, the plaintiffs’ demand letter of 15th April 2021, the reply of the defendant’s advocates dated 6th May 2021 admitting possession through Josephine Achieng Ochieng, and further letters dated 18th May 2021, 3rd November 2021, 19th November 2021, 20th November 2021 and 3rd December 2021 exchanged between the two firms on record, which he said show the plaintiffs to have been fully aware of the alleged fraud and to have been actively pursuing an amicable settlement. The suit having been filed only in 2025, the amendment could not cure that bar, and fell foul of the fifth of the principles adopted in *Coffee Board of Kenya* (supra). Counsel added that the surveyor’s report, however thorough, is not binding legal authority for the cancellation of a registered title. 21. Thirdly, on prejudice, counsel submitted that the joinder of four further parties, including the Attorney General sued on behalf of the Ministry of Lands, would compel the respondent to litigate alongside institutions of Government in a forum and upon a subject matter for which he did not originally bargain, and that the rules governing service, appearance and defence by State entities would further complicate and delay the proceedings. Pleadings having closed, and a statement of defence and a replying affidavit having been filed, the respondent would be driven back to the drawing board to re-arm, re-investigate and re-instruct experts at considerable time and expense, while the matters he had prepared to defend would be rendered largely irrelevant. 22. Fourthly, counsel submitted that there had been inordinate and unexplained delay: the survey report which triggered the application is dated 4th August 2025 while the application was taken out on 5th November 2025, an interval of ninety-four days for which no explanation has been offered and which he characterised as an attempt to frustrate the hearing of the main suit. It was further suggested that the surveyor’s report had been available to the plaintiffs before the suit was filed. Reliance was placed on **Kiai v Mwangi [2026] KEELC 2613 (KLR),** where the court declined leave to amend for undue delay, want of explanation and mala fides, and on **Joshua Kimani v Kiso Enterprises Ltd, Ketan Doshi, Chief Lands Registrar & Attorney General [2020] KEELC 1199 (KLR),** citing **Halsbury’s Laws of England, 4th Edition (Re-issue), Volume 36(1)** at paragraph 76, for the proposition that a party applying for amendment must act in good faith. 23. In the alternative, and without prejudice to the foregoing objections, counsel invited the court, if minded to grant leave, to do so only upon stringent conditions. He relied upon the ruling of Okong’o J in **John Robert McTough v William Roman McTough & 2 others, Kisumu ELC Case No. 59 of 2017,** in which leave to further amend was granted on condition that the plaintiff pay each of the 1st and 2nd defendants Kshs. 250,000/- as thrown-away costs within forty-five days, file the further amended plaint within fifteen days of payment, and, in default of payment, the leave would stand vacated and the application stand dismissed with costs. Counsel prayed for an order in identical terms. On costs generally, reliance was placed on section 27(1) of the Civil Procedure Act and on **Githiaka v Nduriri [2004] 2 KLR 67, where Ringera Ag JA (as he then was)** observed that in the exercise of its discretion the court’s primary concern should be to do justice to the parties. ***(iii) The Applicants’ supplementary submissions*** 24. The applicants replied by supplementary submissions dated 30th June 2026. As to the alleged new cause of action, counsel submitted that the parcel in dispute is plot No. 179 Migosi Site and Service Scheme, now registered as KISUMU/MANYATTA “A”/5134; that this was discovered only upon receipt of the letters dated 6th May 2021 and 1st December 2020 and of the respondent’s replying affidavit sworn on 11th April 2025; and that it was those documents which prompted the applicants to engage a surveyor, their parcel as known to them being distinct from, though adjacent to, the respondent’s parcel and separated from it by a storm water drain. The survey established the two to be one and the same plot on the ground. 25. Counsel drew attention to what he described as an irregularity apparent on the face of the records annexed to the report, namely that the green card shows KISUMU/MANYATTA “A”/5134 to be a subdivision of KISUMU/MANYATTA “A”/5023 transferred from the defunct Municipal Council of Kisumu to the respondent, whereas the mutation form indicates that the subdivision of parcel 5023 resulted in parcels KISUMU/MANYATTA “A”/5142 to 5145. The intended amendment, it was submitted, seeks to demonstrate the manner in which the defendant, in order to defeat the estate’s claim to plot No. 179 held under leasehold tenure, procured the registration of the same land as a freehold interest through a scheme involving the parties sought to be joined; it clarifies rather than supplants the claim; and to refuse it would compel the applicants to institute a separate suit over the same parcel of land, contrary to the overriding objective of affording expeditious and affordable disposal of suits. 26. Counsel further relied upon Order 8 rule 3(5) of the Civil Procedure Rules, 2010, submitting that even if the court were to find that a new cause of action is being introduced, the court retains the discretion to allow it, because it arises out of the same facts in respect of which relief has already been sought in the suit. 27. On limitation, counsel submitted that the respondent had misstated the law: by section 7 of the Limitation of Actions Act an action for the recovery of land must be brought within twelve years of the accrual of the right of action; and by section 26 of the same Act, where the action is based upon the fraud of the defendant or his agent, or the right of action is concealed by the fraud of such a person, or the action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it. The fraud, it was said, was discovered on or about 4th August 2025 upon receipt of the survey report, and the claim is accordingly not time-barred. *Coffee Board of Kenya v Thika Coffee Mills Limited* (supra) was said to be distinguishable, the issue there having been the entry of summary judgment on admission and the refusal of leave to amend a defence, no question of a time-barred amendment having arisen. 28. On prejudice and delay, counsel submitted that *McTough* (supra) is distinguishable because the matter there had proceeded to the closure of the defendants’ case, so that the delay was inordinate and the thrown-away costs deserved; whereas the present suit has not been set down for hearing and remains at the interlocutory stage of the notice of motion dated 17th March 2025, in the course of which the information giving rise to this application came to light. *Kiai v Mwangi* (supra) was likewise said to be distinguishable, the applicant there having sought leave only after testifying and being cross-examined, in a matter which had been pending for some eight years. The sum of Kshs. 250,000/- was accordingly said to be undeserved, pleadings not properly being regarded as closed, and the respondent retaining the right to amend his defence should the need arise. **Analysis and determination** 29. I have anxiously considered the application, the supporting affidavit and the annextures thereto, the grounds of opposition, the written submissions of both parties together with the applicants’ supplementary submissions, the authorities cited and the whole of the record. In my view the issues that fall for determination are: 1. **Whether the intended amendment introduces a new and inconsistent cause of action or converts the suit into one of a substantially different character;** 2. **Whether the claims intended to be introduced are barred by limitation;** 3. **Whether the application is made bona fide and without inordinate and unexplained delay;** 4. **Whether the intended amendment would occasion the respondent prejudice incapable of being compensated by an award of costs and, if leave is granted, whether it ought to be granted upon conditions;** 5. **Whether the intended 2nd to 5th defendants ought to be joined to the suit; and** 6. **What orders ought to issue as to costs.** 30. Before turning to those issues, a preliminary observation on the form of the motion is called for. The application is expressed to be brought, in part, under Order 8 rule 3(3) of the Civil Procedure Rules, 2010. That subrule is concerned with an amendment to correct the name of a party where the court is satisfied that the mistake sought to be corrected was a genuine one; it is not the provision under which the present relief lies. The correct anchor for an application of this character, pleadings having closed, is section 100 of the Civil Procedure Act as read with Order 8 rules 3(1) and 5 of the Civil Procedure Rules, 2010. That said, the motion also invokes sections 1A, 1B and 3A of the Civil Procedure Act and “all other enabling provisions of the law”; the substance of the relief sought is unmistakable from the face of the motion; and the respondent, who has answered it both by grounds of opposition and by written submissions running to some ten pages, has plainly not been embarrassed in doing so. Article 159(2)(d) of the Constitution enjoins this court to administer justice without undue regard to procedural technicalities. I therefore decline to dispose of the application on that footing and proceed to consider it on its merits. 31. The power to permit the amendment of pleadings is a discretionary one, to be exercised judicially and upon reason. **Section 100 of the Civil Procedure Act provides:** ***“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.”*** 32. Order 8 rule 5(1) of the Civil Procedure Rules, 2010 is cast in similar terms, empowering the court, for the purpose of determining the real question in controversy between the parties or of correcting any defect or error in any proceedings, either of its own motion or on the application of any party, to order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just. 33. The principles which guide the exercise of that discretion are settled, and there was in truth little between counsel as to what they are. In **Eastern Bakery v Castelino (1958) E.A. 461 the Court of Appeal** for Eastern Africa held that amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side, and that there is no injustice if the other side can be compensated by costs. The court will not refuse an amendment merely because it introduces a new case; but it will refuse leave where the amendment would change the action into one of a substantially different character, or where it would prejudice the rights of the opposite party existing at the date of the proposed amendment, as for instance by depriving him of a defence of limitation. 34. Those principles were restated by our own Court of Appeal in **Ochieng and Others v First National Bank of Chicago, Civil Appeal No. 149 of 1991**, where Shah JA distilled them as follows: that the power of the court to allow amendment is intended to determine the true substantive merits of the case; that amendments should be timeously applied for; that the power to amend may be exercised at any stage of the proceedings; that as a general rule, however late the amendment is sought, it should be allowed if made in good faith provided costs can compensate the other side; and that a plaintiff will not be allowed to reframe his case or his claim if by the amendment the defendant would be deprived of his right to rely on the Limitation of Actions Act, subject however to the power of the court to allow the amendment notwithstanding the expiry of the current period of limitation. 35. In **Institute for Social Accountability & another v Parliament of Kenya & 2 others; Commission for the Implementation of the Constitution (Interested Party) [2014] KEHC 7356 (KLR),** a three-judge bench of the High Court put the matter thus: ***“The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief or remedy already claimed, but rather on the basis of the true state of the facts which the parties really and finally intend to rely on. The power of amendment makes the function of the court more effective in determining the substantive merits of the case rather than holding it captive to form of the action or proceedings.”*** 36. The same bench went on to observe that the court will normally allow such amendments as may be necessary for determining the real questions in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, no new or inconsistent cause of action is introduced, no vested interest or accrued legal right is affected, and the amendment can be allowed without injustice to the other side. It also emphasised that at that stage the court is not concerned with the substantive merits of the case, those being matters for the hearing. The principles drawn from **Mulla and adopted in Coffee Board of Kenya v Thika Coffee Mills Limited & 2 others [2014]** eKLR, upon which the respondent relies, are to the same effect and I gratefully adopt them. The dispute between these parties is not as to the content of the principles but as to their application to the material before me. I turn to that. ***Issue (i): new and inconsistent cause of action*** 37. This is the principal ground of opposition and I deal with it first. It is convenient to begin by identifying what the real question in controversy between these parties now is. The claim as originally framed proceeded upon the premise that the defendant is in occupation of plot No. 179 Migosi Site and Service Scheme without any documentary claim to it. That premise was displaced by the defendant’s own replying affidavit sworn on 11th April 2025, in which he asserted registered proprietorship of KISUMU/MANYATTA “A”/5134 and, at paragraphs 7, 10 and 11 thereof, a purchase from Josephine Achieng Ochieng for full value. If, as the surveyor’s report indicates, plot No. 179 and parcel 5134 occupy one and the same footprint on the ground, then the real question in controversy is not merely whether the defendant is in occupation that much he admits but by what right he occupies, and whether the registration upon which he relies can stand. A suit tried without that question on the pleadings would be a suit tried upon a false hypothesis. That is precisely the mischief which the power of amendment exists to cure. 38. I have compared the plaint dated 17th March 2025 with the draft amended plaint. The substratum of the claim is unchanged: it remains a claim that plot No. 179 Migosi Site and Service Scheme forms part of the unadministered estate of Norbert Ochieng Otieno and that the defendant’s occupation of, and dealings with, that property are unlawful. What the draft does is to plead the mechanism by which the defendant is alleged to have come by the registered interest, to particularise the alleged illegality and fraud, to join the public bodies and officers said to have facilitated it, and to seek the consequential reliefs of cancellation and rectification. Those are amplifications of, and consequential upon, the claim already on the record. They do not convert this suit into an action of a substantially different character; on the contrary, they bring on to the record the reliefs which alone can render effective the relief already sought. 39. The submission that the original claim lay “entirely in the law of succession and estate administration” understates the plaint as filed. Paragraph 5 of that plaint pleads express particulars of illegality and fraud against the defendant passing off as the owner, illegally drawing rent, and alienating to himself the properties of the deceased. Fraud was therefore on this record from the outset. What the draft amended plaint does is to particularise the mechanism of the fraud alleged, now that the mechanism is said to be known, and to bring before the court the parties and the reliefs without which that fraud, if proved, cannot be undone. That is amplification, not substitution. There is, moreover, a tension in the respondent’s position which was not resolved in argument: his limitation objection depends upon the proposition that the plaintiffs had long been on notice of, and were actively pursuing, precisely the fraud they now seek to particularise. If the plea of fraud was sufficiently on foot in 2021 to set time running against the plaintiffs, it cannot at the same time be a stranger to this suit. 40. Nor is the intended amendment “inconsistent” in the sense contemplated by the third of the principles drawn from *Mulla*. An inconsistent amendment is one which negatives an admitted position of fact, or which advances mutually destructive allegations. Nothing of that kind arises here. The applicants have from the outset maintained that the suit property forms part of the deceased’s estate and that the defendant is in unlawful occupation of it. They now say, in addition, how the defendant came to hold the paper title he asserts. There is no departure from any position previously taken; there is elaboration of a position consistently held. 41. Even if I were wrong in that view, and the intended plea were properly to be characterised as a new cause of action, **Order 8 rule 3(5) of the Civil Procedure Rules, 2010** would answer the objection. It provides: ***“An amendment may be allowed under sub-rule (2) notwithstanding the effect will be to add or substitute a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment.”*** 42. The matter intended to be pleaded arises out of the very facts upon which relief has already been claimed in this suit: the identity and location of the suit property, the defendant’s entry into possession in or about November 2020, and the source of the interest which he asserts in answer to the claim. The rule was framed for precisely this situation, and where the Rules make express provision it is unnecessary to resort to general propositions drawn from elsewhere. 43. As to the authorities relied upon by the respondent on this issue, I make these observations. **D.T. Dobie & Company (Kenya) Ltd v Muchina & another [1982] KLR 1** is, with respect, authority principally against the proposition for which it was cited. The passage of Madan JA most often invoked from that decision, and which is reproduced in the very ruling of Okong’o J which the respondent has annexed to his own submissions, is this: ***“A court of justice should aim at sustaining a suit rather than terminating it by summary dismissal… 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.”*** 44. The passage set out in the respondent’s submissions under the name of that decision is not one which I have been able to trace, and no copy of the report was placed before me. I say no more about it. As for *Ngugi v Kagiri*, the commentary of Chitaley and Rao upon the Indian Code, and the Ugandan decision in *Ntungamo District Local Council v John Karazarwe*, they express, at their highest, the general principle that a suit of one character will not by amendment be converted into a suit of another. That principle I accept without difficulty; it simply does not describe what is sought here. In any event, a general principle drawn from a textbook or from a foreign decision cannot displace the express terms of Order 8 rule 3(5), which is the law binding upon this court. 45. On issue (i), therefore, I find that the intended amendment neither introduces an inconsistent cause of action nor converts this suit into an action of a substantially different character. ***Issue (ii): limitation*** 46. The respondent’s second contention, raised for the first time in his written submissions, is that the intended claim is statute-barred. With respect, the submission proceeds upon a misapprehension of the Limitation of Actions Act, Cap 22. 47. There is no general rule in that Act that an action founded on fraud must be brought within three years. The three-year period for which the respondent contends is that prescribed by section 4(2) for actions founded on tort. An action to recover land and a claim for a declaration of title, for the cancellation of a title and for rectification of the register is in substance such an action may be brought within twelve years of the date on which the right of action accrued: section 7. Section 26 then operates not to shorten but to postpone: where the action is based upon the fraud of the defendant or his agent, or the right of action is concealed by the fraud of such a person, the period of limitation does not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it. 48. Taking the respondent’s own chronology, the change of tenure is said to have been effected on 17th May 2016 and the registration in the defendant’s name on 12th November 2020. This suit was filed on 17th March 2025. On no view has twelve years run from either date. Even accepting, for the purpose of argument only, the respondent’s contention that the plaintiffs knew of his claim in 2021, a suit of this character filed in 2025 would be comfortably within time. The limitation objection therefore fails upon the respondent’s own material. 49. There is a further and more fundamental answer. The rule that an amendment ought not to be permitted where it would deprive the opposite party of an accrued defence of limitation is directed at the mischief of relation back that is, at an amendment which, taking effect from the date of the original pleading, would rob a defendant of a limitation defence which had accrued in the interval. Nothing of that sort arises here. The respondent has not pleaded limitation in his defence; he did not raise it in his grounds of opposition; he raises it for the first time in submissions, and submissions are not pleadings. If, upon service of the amended plaint, he or any of the intended defendants wishes to plead the Limitation of Actions Act, they will be entirely at liberty to do so, and the plea will fall to be determined upon evidence including evidence as to when the alleged fraud was, or with reasonable diligence could have been, discovered, which is a question of fact and not one to be resolved upon competing affidavits. What I decline to do is to try that question on an interlocutory application for leave to amend, in the absence of the very parties most affected by it, and thereby to shut out a claim which has never been heard. ***Issue (iii): bona fides and delay*** 50. The chronology tells against the suggestion of mala fides. The plaint was filed on 17th March 2025. The defendant’s asserted title was first disclosed on 11th April 2025. The site visit was undertaken on 16th July 2025 and the surveyor’s report is dated 4th August 2025. The application was taken out on 5th November 2025. The applicants did not sit on their hands; they moved once they had obtained the expert material upon which the intended plea rests. 51. The respondent characterises the ninety-four days between the report and the application as inordinate delay warranting the refusal of leave. I am unable to agree. Delay is not measured by arithmetic alone; what matters is whether the lapse of time has occasioned prejudice or betrays a want of good faith. In the interval the applicants had to consider a technical report and the cadastral records annexed to it, take instructions from three administrators, settle a draft amended plaint pleading particulars of fraud against a private defendant and four public bodies and officers, and prepare a supporting affidavit. Three months for that exercise is not, in my judgment, inordinate; still less is it evidence of a design to frustrate the hearing of a suit which had not been, and has not since been, set down for hearing. 52. The submission that the surveyor’s report “was available to the Applicant/Plaintiff before it filed the suit” is not borne out by the record. The report is dated 4th August 2025 and records a site visit conducted on 16th July 2025. The suit was filed on 17th March 2025. The report cannot have been available before the suit was filed, and I respectfully reject the submission. 53. The authorities cited on this issue are distinguishable, and distinguishable for substantially the reasons advanced by the applicants. In *Kiai v Mwangi* (supra), leave was sought after the applicant had testified and been cross-examined, in a matter which had been pending for some eight years, and the court found the object of the amendment to be the patching of evidence. In *Joshua Kimani v Kiso Enterprises Ltd* (supra), the passage cited from *Halsbury’s Laws of England* is in terms directed at an amendment sought at a late stage of the trial. Here there has been no trial, late or otherwise. Critically, the material which founds the amendment emerged from the respondent’s own answer to the suit, and a litigant can hardly be heard to complain of an amendment made necessary by his own pleading. I am satisfied that the application is made in good faith and without undue delay. ***Issue (iv): prejudice and conditions*** 54. The suit has not been heard and no hearing date has been taken. Upon service of the amended plaint the respondent will have the opportunity to file an amended defence and, if so advised, a counterclaim, and to answer the particulars of fraud and illegality now pleaded. Whatever prejudice the amendment occasions him is of the ordinary kind which an award of costs can assuage. Applying *Eastern Bakery v Castelino* (supra), I find no injustice which costs cannot compensate. 55. I do not accept that the closure of pleadings works prejudice of a different order. The closure of pleadings is not a bar to amendment; it is the ordinary state of affairs in which applications of this kind come to be made, and both section 100 of the Act and Order 8 rule 5 in terms contemplate amendment at any stage. Nor is the prospect of litigating alongside State organs a recognisable head of prejudice. A defendant has no vested right to a particular set of co-defendants. If the respondent’s title is as regular as he asserts, the presence of the Land Registrar and of the survey authority may as readily vindicate it as embarrass it; those are the very officers whose records will establish the position one way or the other. 56. That leaves the alternative prayer for conditions in the terms of *McTough*. That ruling repays attention, but it does not assist the respondent. Okong’o J was there dealing with a suit filed on 27th March 2012 which had been pending for over thirteen years; the plaintiff and the 1st and 2nd defendants had each given evidence and closed their cases; the plaintiff sought to add thirty-two new parties, in consequence of which the hearing would have had to begin afresh; and the learned Judge found that the plaintiff had in fact known of the subdivision of the suit property before he closed his case. The thrown-away costs of Kshs. 250,000/- for each defendant were assessed by reference, expressly, to the work done and the time spent upon the matter over those thirteen years, and to the fact that a concluded hearing would be wasted. 57. None of those features is present here. This suit was filed in March 2025. There has been no hearing; no evidence has been taken; no hearing date has been vacated; nothing will have to begin afresh. There are, accordingly, no costs thrown away in the sense in which that expression was used in *McTough*, and an order for the payment of Kshs. 250,000/- as the price of leave would not be compensatory but punitive. Still less would it be right to impose the further condition prayed, namely that in default of payment the leave should stand vacated and the application stand dismissed. A condition of that severity, at this stage of this suit, would be to extinguish a claim that has never been heard on account of an application brought within three months of the material which prompted it. That is not the exercise of discretion for which *Githiaka v Nduriri* (supra) cited by the respondent himself calls, the court’s primary concern being to do justice to the parties. What justice requires here is that the respondent be indemnified for the costs which this application and the consequent re-pleading have occasioned him, and no more. ***Issue (v): joinder of the intended 2nd to 5th defendants*** 58. A distinct feature of this application deserves separate treatment, namely that the intended amendment brings four new defendants on to the record. Order 1 rule 3 of the Civil Procedure Rules, 2010 permits the joinder as defendants of all persons against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, where, if separate suits were brought against them, any common question of law or fact would arise. Order 1 rule 10(2) further empowers the court, at any stage of the proceedings, to order that the name of any person whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit be added. In **Meme v Republic [2004] 1 KLR 637** the court identified the circumstances in which joinder will be permissible: where the presence of the party will result in the complete settlement of all the questions involved in the proceedings; where the joinder will provide protection for the rights of a party who would otherwise be adversely affected in law; and where the joinder will prevent a likely course of proliferated litigation. 59. Measured against that yardstick, the joinder sought is plainly proper. The applicants seek, among other things, the cancellation of a title and the rectification of the land register and of registry index map sheets 1 and 5 for the Manyatta “A” registration section. Relief of that nature operates directly upon records kept by, and requires the participation of, the Land Registrar and the survey authority; it cannot be effectually granted in a contest confined to a private defendant. Equally, the suit property is alleged to have originated as public land vested in the defunct Municipal Council of Kisumu, the predecessor of the County Government of Kisumu, and the propriety of its conversion and alienation is squarely put in issue. The presence of the intended 2nd to 5th defendants is therefore necessary to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, and to avert a multiplicity of suits which is precisely what would follow were the applicants driven to file a separate action for cancellation and rectification, as the respondent’s submissions would in effect require them to do. 60. It is not without significance that the respondent himself, at paragraphs 16 and 20 of his replying affidavit sworn on 11th April 2025, urged that Josephine Achieng Ochieng be joined to this suit as a necessary party. His present resistance to any enlargement of the parties sits uneasily with that position. For the avoidance of doubt, nothing in this ruling precludes the respondent from applying for the joinder of any party he considers necessary, or from issuing a third party notice, in accordance with the Rules. ***Issue (vi): costs*** 65. Costs are in the discretion of the court under section 27(1) of the Civil Procedure Act and ordinarily follow the event. An amendment, however, is an indulgence sought by the party applying, and the settled practice is that the party who seeks the indulgence bears the costs occasioned by it. Indeed, that practice is the very foundation of the rule in *Eastern Bakery v Castelino* (supra) that no injustice arises where the other side can be compensated in costs. Although the need for the amendment was precipitated by the respondent’s own disclosure, it is nevertheless the applicants who seek the accommodation of the court and who have put the respondent to the expense of grounds of opposition and of written submissions. The just order, in my view, is that the applicants bear the costs of and occasioned by the amendment, including the costs of this application. 66. In order to spare the parties the further expense and delay of taxation over a modest sum, and having regard to the nature and length of the application, to the rounds of submissions filed and to the fact that no hearing has been lost, I assess those costs at Kshs. 40,000/-. For the reasons given under issue (iv), I decline the respondent’s prayer for Kshs. 250,000/- and I decline to make payment a condition precedent to the leave hereby granted **Disposition** 67. In the result, and for the reasons set out above, I find the Notice of Motion dated 5th November 2025 to be merited. I accordingly make the following orders: i. Leave is hereby granted to the plaintiffs/applicants to amend the plaint in the terms of the draft amended plaint annexed to the supporting affidavit of Samuel Oduor Ochieng sworn on 5th November 2025 and marked “SOO-5”. ii. The amended plaint shall be filed and served two (2) days of the date hereof, upon payment of the requisite filing fees. iv. The 1st defendant shall be at liberty to file and serve an amended defence, and if so advised a counterclaim, within fourteen (14) days of service of the amended plaint; the 2nd to 5th defendants shall file and serve their respective defences within 30 days of service. v. The costs of and occasioned by the amendment, including the costs of this application, shall be borne by the plaintiffs/applicants in any event and are assessed at Kshs. 40,000/-, payable to the defendant/respondent within thirty (30) days of the date hereof. Such payment is not a condition precedent to the leave granted in order (i) above. Orders accordingly. **DATED, SIGNED AND DELIVERED AT KISUMU THIS 30TH DAY OF JULY 2026.** **E. K. WABWOTO** **JUDGE** **In the presence of:** **N/A for the Plaintiffs/Applicants.** **Ms. Raburu h/b for Mr. M.M. Omondi for the Defendant/Respondent.** **Court Assistant: Joane Omondi.**