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ELCDismissedEnvironment and Land Case E037 of 2025

Bassi v Emoru Garite Enterprise Limited & 3 others

Environment and Land Court
1 October 2026
3,693 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that fixing a land dispute after a lawsuit is filed does not erase the claim, so the defendant stayed in the case and paid costs.

What this practically means

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Executive summary

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The 2nd Defendant, Elisha Kipkori Busienei, moved the court by Notice of Motion dated 7th May, 2026 under Order 1 rule 10(2) of the Civil Procedure Rules seeking a declaration that no cause of action existed against him, striking out of his name from the suit, and costs. He deponed that he registered a restriction over the suit parcels (Eldoret Municipality/Block 14/476 and 14/478) on 13th April 2023 after transacting with persons he believed were agents of the 1st Defendant, that the plaintiff never sought removal of the restriction through the Land Registrar, and that he had voluntarily withdrawn the restriction, leaving no cause of action. The plaintiff, registered proprietor since 2005, countered that the restriction existed when he filed suit on 29th April 2025 and its subsequent removal could not retrospectively extinguish the cause of action; he sought costs of Kshs. 200,000. The court framed three issues: existence of cause of action at filing, striking out, and costs. Adopting the definitions of cause of action in Drummond Jackson, Read v Brown and Letang v Cooper, the court held the restriction founded a recognizable cause of action at institution, and its subsequent withdrawal did not extinguish the claim, costs remaining undetermined. The Applicant's presence remained necessary for effectual determination. Applying Section 27 of the Civil Procedure Act, the motion was dismissed with costs to the plaintiff.

Questions the Court framed

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

  1. 1.Whether there existed a cause of action against the 2nd Defendant/Applicant at the time of filing the suit and, if so, whether the subsequent withdrawal of the restriction extinguished such cause of action
  2. 2.Whether the name of the 2nd Defendant should be struck out of the pleadings
  3. 3.Who bears the costs of the application

Key legal issues

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01

Whether a cause of action existed against the 2nd Defendant at filing

Holding

Yes - the restriction registered by the Applicant existed when the suit was filed and founded a recognizable cause of action

Reasoning

The plaintiff, registered proprietor of the suit parcels, complained of a restriction registered by the Applicant claiming purchasers' interest. The restriction existed at institution. The Applicant did not dispute registering it. His good faith belief that he dealt with authorised agents of the 1st Defendant does not, at the interlocutory stage, remove the legal effect of the restriction on the register.

02

Whether subsequent withdrawal of the restriction extinguished the cause of action

Holding

No - removal after institution and service does not alter the factual claim; costs also remain undetermined

Reasoning

The Applicant voluntarily withdrew the restriction after settlement negotiations. The plaintiff acknowledged removal but noted it occurred after suit was filed and after service. The court held the removal did not alter the factual claim in the plaint and that the issue of costs remained outstanding, so the claim survived.

p. 7
03

Whether the 2nd Defendant's name should be struck out

Holding

No - his presence remains necessary for effectual and complete determination of the remaining dispute including costs

Reasoning

Order 1 Rule 10(2) requires consideration of the Applicant's present necessity, not only joinder at commencement. Although the restriction was removed, unresolved issues such as costs mean retaining the Applicant serves the practical purpose of effectually determining the plaintiff's remaining dispute.

p. 8
04

Who bears the costs of the application

Holding

The plaintiff, as the application failed

Reasoning

Under Section 27 of the Civil Procedure Act costs follow the event and a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise. The application having failed, the plaintiff was entitled to the costs of the application.

p. 8

Legal principles established

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  • A cause of action is assessed at the time of institution of the suit; a defendant's subsequent removal of the grievance does not retrospectively extinguish it
  • Order 1 Rule 10(2) empowers the court at any stage to strike out improperly joined parties, considering the party's present necessity, not merely the justification for joinder at commencement
  • Costs follow the event under Section 27 of the Civil Procedure Act unless the court for good reason directs otherwise

Court orders

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  1. 1.The 2nd Defendant/Applicant's Notice of Motion dated 7th May, 2026 is dismissed with costs to the plaintiff

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over land disputes; application under Order 1 rule 10(2) of the Civil Procedure Rules

Relief refused

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Declaration that there exists no cause of action against the 2nd Defendant

Cause of action existed when the suit was instituted; subsequent withdrawal of the restriction did not extinguish it

p. 7

Striking out of the 2nd Defendant's name from the proceedings

Applicant's presence remains necessary for effectual determination of the remaining dispute, including costs

p. 8

Plaintiff's claim for costs of Kshs. 200,000 from the 2nd Defendant

The court awarded costs of the application only; the quantum claim of Kshs. 200,000 was not granted

Costs

Application dismissed with costs to the plaintiff

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 upshot is that the 2nd Defendant /Applicant's Notice of Motion dated 7th May, 2026 is not merited and is dismissed with costs to the plaintiff.
p. 8Final orders - dismissal of the application
The subsequent withdrawal of the restriction after the institution of the suit cannot retrospectively render the claim against the Applicant unjustified.
p. 4Cause of action assessed at institution
A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.
p. 5Definition of cause of action (Letang v Cooper, adopted)
In the exercise of that discretion, the court must as a matter of cause, act according to reason and fairness and not according to its whims and caprice.
p. 5Discretion to strike out a party (Pinnacle Projects, adopted)

Issues in the judgment

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minor

Conflicting dates of institution of the suit

minor

Conflicting dates of the 2nd Defendant's supporting affidavit

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, "Bassi v Emoru Garite Enterprise Limited & 3 others", Case Analysis (2026). Environment and Land Case E037 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6103/eng@2026-10-01

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