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ELCDismissedNot stated in judgment

Kihara & another v Sharifow (Environment & Land Case E029 of 2023) [2025] KEELC 4904 (KLR)

Environment and Land Court
30 June 2025
COChristine Ochieng
731 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner who signed an agreement admitting ownership of disputed Nairobi land cannot escape a lawsuit over that land by denying he owns it.

What this practically means

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Executive summary

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This was a ruling on the Plaintiff's Notice of Motion dated 25th November 2023, in which the Defendant, Abdirashid Abdul Sharifow, sought to have his own name struck out from the suit concerning Plot No. 285 (LR No. 36/VII/285), denying that he was the owner of the property in dispute. The Plaintiff, through a replying affidavit sworn by Benson Ngura Kihara, opposed the application, asserting that the Defendant was the owner of the plot and attaching an Agreement dated 6th September 2024 to that effect. The Plaintiff argued that the question of whether the Defendant had been properly sued could only be determined at the main hearing. The application was canvassed by written submissions. The court framed a sole issue: whether the Defendant should be struck off the suit. Relying on Order 1 Rule 10(1) and (2) of the Civil Procedure Rules, Justice Christine Ochieng observed that although the Defendant denied ownership, he had signed an Agreement for Removal of Temporary Structures dated 6th September 2024, produced by the Plaintiff as annexure 'BN1', in which he admitted ownership of plot LR 36/VII/285. The court held that the Defendant was therefore properly joined, his presence was necessary to enable the court effectually and completely adjudicate on all questions in the suit, and the application to be struck out amounted to an abuse of the process of court. The Notice of Motion was dismissed with costs in the cause.

Questions the Court framed

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

  1. 1.Whether the Defendant should be struck off this suit

Key legal issues

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01

Whether the Defendant should be struck out of the suit under Order 1 Rule 10(2) of the Civil Procedure Rules

Holding

The application was dismissed; the Defendant is properly joined as owner of Plot No. 285 (LR No. 36/VII/285).

Reasoning

Although the Defendant denied ownership of the suit property in his supporting affidavit, he signed an Agreement for Removal of Temporary Structures dated 6th September 2024 in which he admitted ownership of plot LR 36/VII/285. That agreement, produced as annexure 'BN1' by the Plaintiff, confirmed his ownership. His presence is necessary for the court to effectually and completely adjudicate on all questions in the suit, so striking him out was unwarranted and the application constituted an abuse of process.

p. 2

Legal principles established

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  • A party whose ownership of the disputed property is confirmed by a signed agreement is properly joined, and an application by such a party to be struck out of the suit amounts to an abuse of the process of court.
  • The court may at any stage strike out the name of a party improperly joined, or join any person whose presence is necessary to effectually and completely adjudicate upon the suit, under Order 1 Rule 10 of the Civil Procedure Rules.

Court orders

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  1. 1.The Notice of Motion application dated 25th November 2023 is dismissed
  2. 2.Costs will be in the cause

The bench

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

CO
majority

Wrote the judgment

Jurisdiction invoked
Order 1, Rule 10 (1) and (2) of the Civil Procedure Rules

Relief refused

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Striking out of the name of Abdirashid Abdul Sharifow from the suit

The Defendant admitted ownership of the suit property in an agreement dated 6th September 2024, and his presence is necessary for the court to effectually and completely adjudicate on the dispute; the application amounts to an abuse of process

p. 2

Costs

Costs will be in the cause

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.

In the circumstance, I find the instant Notice of Motion application unmerited and will proceed to dismiss it.
p. 2Disposition - dismissal of the application
Costs will be in the cause.
p. 2Costs order
It is my considered view that seeking an order to be struck off this suit, actually amounts to an abuse of the process of court.
p. 2Abuse of process
I opine that his 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.
p. 2Necessary party under Order 1 Rule 10(2)

Issues in the judgment

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minor

Internal date inconsistency: the application is dated 25th November 2023, but the Plaintiff's replying affidavit attaches an Agreement dated 6th September 2024, which post-dates the application.

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, "Kihara & another v Sharifow (Environment & Land Case E029 of 2023) [2025] KEELC 4904 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4904/eng@2025-06-30

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