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ELCAllowedELC L Case No. E038 of 2023· [2026] KEELC 5059 (KLR)

Musyoki & another v Dave & 5 others (Land Case E038 of 2023) [2026] KEELC 5059 (KLR)

Environment and Land Court
29 July 2026
CNC.K. NZILI
1,426 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan land court struck out two defendants because the lawsuit against them had no substance, showing courts will protect wrongly joined parties.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (C.K. Nzili J) on a Notice of Motion dated 29 October 2025 by the 5th and 6th Defendants seeking to strike out the suit against them. The 6th Defendant, Jamal A. Abdinoor, deposed that neither he nor the 5th Defendant has any personal, proprietary or beneficial interest in the dispute; the 5th Defendant was allegedly sued only because it shared office space with the 6th Defendant, an advocate for the 1st Defendant whose firm paid the security company guarding the suit premises. The court restated the settled principles: striking out is a discretionary, draconian power to be exercised sparingly, in plain and obvious cases, without embarking on the merits (D.T. Dobie v Muchina; Blue Shield Insurance v Oguttu; Kivanga Estate v National Bank of Kenya). Examining the plaint, the court found it pleaded the claim in general form, with no allegation that the 5th and 6th Defendants held any beneficial or proprietary interest or committed any trespass, fraud, conspiracy or breach of statutory duty. An advocate's acts performed on a client's instructions do not, without more, attract personal liability, and fraud or collusion had to be specifically pleaded with full particulars (Vijay Morjaria). Applying the Supreme Court's guidance in Communications Commission of Kenya v Royal Media Services on necessary parties, the court held the two defendants were improperly joined. The motion was allowed: the names of the 5th and 6th Defendants were struck out under Order 1 Rule 10(2), the plaint was struck out against them under Order 2 Rule 15(1)(a), with costs to the Plaintiff at lower scale borne by the Plaintiff.

Key legal issues

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01

Whether the plaint discloses a cause of action against the 5th and 6th Defendants

Holding

The plaint discloses no cause of action against the 5th and 6th Defendants; it pleads no beneficial or proprietary interest and no specific wrongful act by them.

Reasoning

The claim is pleaded in general form with no material particulars of independent wrongdoing. The 6th Defendant's role as advocate for the 1st Defendant and payment of security services do not, without more, amount to an actionable wrong. If fraud, conspiracy or collusion were intended, they had to be specifically pleaded with full particulars.

p. 7
02

Whether the 5th and 6th Defendants are necessary parties

Holding

They are not necessary parties; their continued participation serves no useful purpose and their joinder was improper.

Reasoning

A necessary party is one in whose absence no effective decree can be passed. Following the Supreme Court's guidance, a party should only be joined where their presence is necessary to effectually and completely adjudicate on the questions in controversy; absent any pleaded cause of action, the joinder improperly burdens them.

p. 7
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The proper exercise of the striking-out discretion

Holding

Striking out is discretionary and draconian, to be exercised only in plain and obvious cases, but here the suit against the two defendants is plainly untenable.

Reasoning

The court should strive to sustain rather than terminate litigation at a preliminary stage, and must consider all facts without embarking on a trial. However, the complete absence of pleaded material facts against the 5th and 6th Defendants makes this a plain and obvious case warranting striking out.

p. 4

Legal principles established

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  • The power to strike out pleadings must be exercised sparingly, only in plain and obvious cases, without embarking on the merits.
  • An advocate who performs acts pursuant to instructions from a client is not, without more, personally liable in proceedings concerning the subject matter of the representation.
  • Allegations of fraud or illegality must be specifically pleaded and strictly proved.

Court orders

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  1. 1.The Notice of Motion dated 29/10/2025 is allowed
  2. 2.The names of the 5th and 6th Defendants are struck out from these proceedings pursuant to Order 1 Rule 10(2) of the Civil Procedure Rules
  3. 3.The Plaint as against the 5th and 6th Defendants is struck out under Order 2 Rule 15(1)(a) of the Civil Procedure Rules
  4. 4.The costs of the application and the suit as against the 5th and 6th Defendants shall be borne by the Plaintiff at lower scale
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; Civil Procedure Rules (Orders 1 Rule 10(2) and 2 Rule 15(1)(a))

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, "Musyoki & another v Dave & 5 others (Land Case E038 of 2023) [2026] KEELC 5059 (KLR)", Case Analysis (2026). ELC L Case No. E038 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5059/eng@2026-07-29

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