Mburu v Evans & 8 others (1st - 3rd Defendants being sued as the administrators of the Estate of the Late Rahab Wanjiru Evans)
The bottom line
#A Kenyan court refused to remove estate administrators from a land dispute because their names were still on the property's title.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants' names should be struck out from the suit for misjoinder
- 2.Who should bear the costs of this application
Key legal issues
#Whether the 1st-3rd defendants should be struck out for misjoinder
Application dismissed; the applicants are necessary parties whose involvement is required for effective adjudication
Order 1 rule 10(2) confers a discretionary power to strike out improperly joined parties, to be exercised judiciously. The applicants admitted Block 7/545 remains registered in the estate's name, contradicting their claim that their administrative duties were discharged. Orders on that property would require their involvement. No prejudice was demonstrated; inconvenience can be remedied by costs. Transposition orders were never sought in the application.
Costs of the application
Costs follow the event under section 27 of the Civil Procedure Act; the unsuccessful applicants bear costs
The general rule is that costs follow the event and a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise. No reason was shown to depart from that rule, so costs were awarded to the plaintiff and the 4th-8th defendants who opposed the application.
Legal principles established
#- A party should not be struck out from proceedings if no prejudice will be occasioned by their remaining a party; the proper remedy is dismissal of the suit against them at trial if no cause of action is established
- A party may be joined not because there is a cause of action against them but because their presence is necessary for the court to effectually adjudicate on all questions in the suit
- Tests for a necessary party: a right to relief against that party, and impossibility of passing an effective decree in their absence
Court orders
#- 1.The notice of motion dated March 21, 2022 is dismissed with costs to the plaintiff, 4th, 5th, 6th & 7th and 8th defendants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; application under Order 1 rule 10(2) of the Civil Procedure Rules, 2010
Relief refused
#Striking out the names of the 1st, 2nd and 3rd defendants from the pleadings for misjoinder
Applicants are necessary parties; Block 7/545 remains registered in the estate's name and orders on it require their involvement; no prejudice shown
Costs
Application dismissed with costs to the plaintiff, 4th, 5th, 6th & 7th and 8th defendants
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
While striking out a party from proceedings is a remedy available under the provisions of order 1 rule 10 (2), my view is that if no prejudice will be occasioned to a party by him/her/it remaining in proceedings, then it is not be necessary to strike them out.
Nakuru Municipality Block 7/545 forms the subject matter of this suit and any orders that will be issued by this court in respect of the said property will invariably require their involvement.
Consequently, the application dated March 22, 2022 is dismissed with costs to the plaintiff, 4th, 5th, 6th & 7th and 8th defendants.
Issues in the judgment
#Date of the application stated inconsistently
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mburu v Evans & 8 others (1st - 3rd Defendants being sued as the administrators of the Estate of the Late Rahab Wanjiru Evans)", Case Analysis (2022). Environment & Land Case 154 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13850/eng@2022-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.