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ELCAllowedNot stated in the extract· [2022] KEELC 3689 (KLR)

Hamza v Abdalla & 3 others (Environment & Land Case 203 of 2014) [2022] KEELC 3689 (KLR)

Environment and Land Court
28 July 2022
NMN.A. Matheka
784 words in judgment
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The bottom line

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What this practically means

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Executive summary

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By a notice of motion dated January 22, 2020 brought under Order 1 rule 10(2), Order 2 rules 15 and Order 51 rule 1 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act, the 3rd and 4th defendants sought striking out of the plaintiff's suit against them. They argued that the 4th defendant was a mere financier of a mortgage loan facility advanced to the 1st defendant to purchase the suit property, Mombasa/Mwembelegeza/991, and was not a party to the contract of sale between the plaintiff and the 1st and 2nd defendants; that a prior order of June 22, 2016 had dismissed the plaintiff's injunctive application against them, whereafter they disposed of the property in reliance on that order; and that the suit disclosed no reasonable cause of action against them, exposing them to prejudice if wrongly retained as parties. The application was unopposed. Matheka J set out the Order 2 rule 15 framework, noting that no evidence is admissible on a 'no reasonable cause of action' application and that the power to strike out is exercised sparingly and cautiously. Applying DT Dobie & Company (Kenya) Ltd vs Muchina, the court held the sole question was whether triable issues existed. The amended plaint of July 10, 2015 merely described the 3rd and 4th defendants in the paragraph on parties, alleged nothing against them and sought no relief from them; they were not necessary parties. The application was allowed as prayed and the suit against the 3rd and 4th defendants was struck out, with costs provided for.

Key legal issues

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01

Whether the plaint should be struck out against the 3rd and 4th defendants for misjoinder and disclosure of no reasonable cause of action

Holding

Application allowed; the 3rd and 4th defendants, being mere financier/disposing parties not party to the sale contract and against whom no prayer is made, are not necessary parties.

Reasoning

Order 2 rule 15 permits striking out pleadings that disclose no reasonable cause of action, and under rule 15(2) no evidence is admissible on such an application. The amended plaint only described the 3rd and 4th defendants in the descriptive paragraph on parties, asserted no wrong against them, and sought no relief from them. The DT Dobie test requires that a suit not be summarily dismissed unless plainly hopeless; here, no semblance of a cause of action against the two defendants was shown, so they were wrongly joined.

p. 2

Legal principles established

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  • A party who is a mere financier and not party to the sale contract, and against whom no relief is sought in the plaint, is not a necessary party and may be struck out for misjoinder.
  • The power to strike out pleadings must be exercised sparingly and cautiously, and is governed by whether triable issues have been raised.

Court orders

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  1. 1.The plaintiff's suit against the 3rd and 4th defendants is struck out
  2. 2.Application granted as prayed

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rule 10(2)
  • Civil Procedure RulesOrder 2 rules 15(1) and 15(2)
  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (1)

  • DT Dobie & Company (Kenya) Ltd vs Muchina
    (1982) KLR 1
Jurisdiction invoked
Order 1 rule 10(2), Order 2 rules 15 and Order 51 rule 1 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Hamza v Abdalla & 3 others (Environment & Land Case 203 of 2014) [2022] KEELC 3689 (KLR)", Case Analysis (2022). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3689/eng@2022-07-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.