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ELCDismissedVihiga ELC Appeal No. E006 of 2023 (appeal from Vihiga CM ELC Case No. 57 of 2020)

Sakwa & 3 others v County Government of Vihiga & 3 others (Environment and Land Appeal E006 of 2023) [2025] KEELC 4560 (KLR)

Environment and Land Court
12 June 2025
1,609 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed courts can strike out parties with no real role in a case, dismissing landowners' attempt to keep Kenya Roads Board in their suit.

What this practically means

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Executive summary

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The plaintiffs sued various respondents in Vihiga CM ELC Case No. 57 of 2020 alleging that during construction of the Musiakhupa Mulusiola–Wanyumbile Road the respondents encroached on land parcels East Bunyore/Ebusiratsi/1223 and /1484, and sought permanent injunction, a declaration, restoration of the land, general damages and costs. The 2nd Defendant, Kenya Roads Board, applied under Order 2 Rule 15 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act to strike out the plaint against it on grounds that it was an unnecessary party and that no cause of action was disclosed against it. By a ruling dated 27 July 2023 the trial magistrate found the Board was not a necessary party, struck out its name from the suit and awarded it costs. The plaintiffs appealed on three grounds, seeking setting aside of the ruling and costs. Asati J, hearing the matter as a first appeal and applying Gitobu Imanyara on the duty to re-evaluate evidence, found no nexus between the Board and the trespass complaint; no cause of action was revealed against it and its presence was not necessary for the effective and complete settlement of the suit, applying Amon v Raphael Tuck & Sons. The court held that the Civil Procedure Rules permit striking out the name of a wrongly joined party. The appeal was dismissed with each party bearing their own costs, as the main suit remains pending before the trial court.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial magistrate erred in finding that Kenya Roads Board was not a necessary party to the suit
  2. 2.Whether the trial magistrate erred in striking out the name of the 2nd Defendant from the suit
  3. 3.Whether the trial magistrate failed to evaluate the evidence on record and arrived at an erroneous conclusion

Key legal issues

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01

Whether Kenya Roads Board was a necessary party

Holding

No; the plaint disclosed no cause of action against it and no nexus between it and the complaint, so it was not a necessary party.

Reasoning

The claim in the plaint was based on trespass allegedly committed by the 4th Defendant through re-routing and constructing the road through the suit lands. The plaint described KRB as a funding/road board, but revealed no act by KRB occasioning loss or interfering with the land. Applying Amon v Raphael Tuck, its presence was not needed for the action to be effectively and completely settled.

p. 4
02

Whether the trial court could strike out the name of a wrongly joined party

Holding

Yes; the Civil Procedure Rules allow striking out the name of a party wrongly joined.

Reasoning

Having found the 2nd Defendant was not a necessary party, the trial court's decision to strike out its name was within the court's powers under Order 2 Rule 15 of the Civil Procedure Rules read with Order 1. The appellate court found no error in that exercise of discretion.

p. 4

Legal principles established

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  • A person should only be made a party to an action if bound by the result and if the questions cannot be effectively and completely settled without them (Amon v Raphael Tuck & Sons)
  • On a first appeal the court re-examines and re-analyses the evidence and draws its own conclusions

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear their own costs of the appeal as the suit is yet to be determined

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Vihiga Chief Magistrate's Court (CM ELC)
57 of 2020
Jurisdiction invoked
First appeal from the subordinate court to the Environment and Land Court under the ELC Act; appeal against ruling striking out a party

Relief refused

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Setting aside/quashing the trial court ruling of 27 July 2023 striking out the 2nd Defendant

No nexus or cause of action revealed against the 2nd Respondent; presence not necessary for effective adjudication

p. 4

Costs of the appeal borne by the Respondent

Court ordered each party to bear own costs since the suit remains undetermined

p. 4

Costs

Each party to bear own costs of the appeal as the suit is yet to be determined.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The appeal is dismissed. Each party to bear own costs of the appeal as the suit is yet to be determined. Orders accordingly.
p. 4final orders/disposition
A reading of the plaint reveals no complaint or nexus between the 2nd Respondent and the complaint in the plaint. In essence, no cause of action was revealed against the 2nd Respondent.
p. 4necessary party / cause of action
The Civil Procedure Rules allows the court to strike out the name of party wrongly joined in a suit.
p. 4striking out wrongly joined party

Issues in the judgment

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material

The names of the plaintiffs/appellants are not given anywhere in the judgment; the parties are referred to only as 'the Plaintiffs'/'the Appellants', so the case title is reconstructed from context

minor

The citation for Amon v Raphael Tuck & Sons is misrendered in the judgment as '1956 in ER 273' (normally [1956] 1 All ER 273)

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, "Sakwa & 3 others v County Government of Vihiga & 3 others (Environment and Land Appeal E006 of 2023) [2025] KEELC 4560 (KLR)", Case Analysis (2025). Vihiga ELC Appeal No. E006 of 2023 (appeal from Vihiga CM ELC Case No. 57 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4560/eng@2025-06-12

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