Orwenyo & 2 others (Suing as the Administrators of Jason Nyariki Orwenyo - Deceased) v Gitau & 2 others (Environment and Land Case E055 of 2024) [2025] KEELC 7118 (KLR)
The bottom line
#The Kajiado Environment and Land Court refused to remove a registered landowner from a land fraud suit, because the property title stands in his name.
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 1st Defendant's application is merited
Key legal issues
#Whether the suit discloses a reasonable cause of action against the 1st Defendant warranting his striking out under Order 2 Rule 15
The application is not merited; the Plaintiffs' pleadings and prayers disclose a rational cause of action against the 1st Defendant, including fraud, cancellation of title and permanent injunction.
The court noted the Plaintiffs seek a permanent injunction, cancellation of the 1st Defendant's title and a declaration that his registration was fraudulent. Given a title stands in the 1st Defendant's name, the Plaintiffs were justified in suing him notwithstanding his claim the title was incorporated without his knowledge or consent. He had also entered appearance and filed a statement of defence.
Correct procedural basis for removing a wrongly joined party
The court observed the application should have been framed under Order 1 Rule 10(2), which empowers striking out improperly joined parties, rather than Order 2 Rule 15.
The court set out Order 1 Rule 10(2) as the provision entrenched for striking out wrongly enjoined parties and expounded the test of a necessary party from Amon v Raphael Tuck & Sons Ltd, before nonetheless determining the application on its merits as brought.
Legal principles established
#- A court may at any stage strike out the name of a party improperly joined or add a necessary party under Order 1 Rule 10(2) of the Civil Procedure Rules.
- The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action.
- A cause of action is an act on the part of the defendant which gives the plaintiff his cause of complaint.
Court orders
#- 1.1st Defendant's Notice of Motion dated 24th March, 2025 dismissed with costs to the Plaintiffs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 2 Rule 15 of the Civil Procedure Rules
Relief refused
#Striking out of the 1st Defendant from the suit with costs
A rational cause of action was disclosed against the 1st Defendant and his participation is significant and inevitable given the suit property stands registered in his name
Costs
Application dismissed with costs to the Plaintiffs.
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.
Accordingly, I find that 1st Defendant Notice of Motion dated 24th March, 2025 is not merited and proceed to dismiss it with costs to the Plaintifis.
Going by the assertions raised by the Plaintifis, the participation of the 1st Defendant in these proceedings is not only significant butalso inevitable given there indeed exists a title to the suit property in his name.
undoubtedly, a rational cause of action has been disclosed against the 1st Defendant as was held in Attorney General & another v Andrew Maina Githinji & another [2016] KECA 817 (KLR)
The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined
Issues in the judgment
#The Notice of Motion is described as dated 24th March, 2025 in the heading and orders but as 'dated 24th March,2024' in paragraph 1
The suit property is referred to as 'Kajiado/ntashart/6122' and later attributed to 'Jason Nyariki Orwenyo', whose relationship to the 1st Plaintiff James Nyabuga Orwenyo is not explained in the extract
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Orwenyo & 2 others (Suing as the Administrators of Jason Nyariki Orwenyo - Deceased) v Gitau & 2 others (Environment and Land Case E055 of 2024) [2025] KEELC 7118 (KLR)", Case Analysis (2025). Not stated in the judgment (Kajiado ELC suit, ruling on 1st Defendant's Notice of Motion dated 24th March, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7118/eng@2025-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.