Nirmal Singh Bassi v Hetunach Contractors & 3 others
The bottom line
#A Kenyan court ruled that removing a property restriction after a lawsuit was filed does not erase the claim or the right to recover legal costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the name of the 2nd Defendant should be struck out of the suit
- 3.Who bears the costs of the application
Key legal issues
#Whether a cause of action existed against the 2nd Defendant at filing
Yes - the restriction registered on 13th April 2023 was still on the register when the suit was filed, founding a recognizable cause of action
The plaintiff was registered proprietor of the suit parcels and complained of a restriction claiming purchasers' interest placed by the applicant. The restriction existed at filing and limited dealings with the property. The applicant's good faith or belief in the agents' authority does not, at an interlocutory stage, remove the legal effect of the restriction.
Whether subsequent withdrawal of the restriction extinguished the cause of action
No - the withdrawal occurred after institution and service, and costs remain undetermined
Both parties acknowledged the restriction was removed, but removal occurred after the suit was instituted and after service of pleadings. The factual claim in the plaint is unaltered and the issue of costs is yet to be determined, so the claim survives.
Whether the 2nd Defendant's name should be struck out
No - the applicant's presence remains necessary for effectual and complete determination of remaining issues including costs
Order 1 Rule 10(2) requires consideration of present necessity, not merely justification of joinder at commencement. Although the restriction no longer exists, costs and other issues remain live, so retaining the applicant is necessary.
Costs of the application
The plaintiff is entitled to costs as the application failed
Costs follow the event under Section 27 of the Civil Procedure Act, which vests discretion in the court. The subsequent withdrawal of the restriction did not retrospectively render the suit against the 2nd Defendant unjustified.
Legal principles established
#- A cause of action existing at the time of filing is not retrospectively extinguished by a subsequent withdrawal of the restriction, particularly as to costs
- Order 1 Rule 10(2) empowers the court at any stage to strike out an improperly joined party or add necessary parties to enable effectual adjudication
- Costs follow the event unless the court for good reason directs otherwise
Court orders
#- 1.The 2nd Defendant/Applicant's Notice of Motion dated 7th May, 2026 is dismissed with costs to the plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act; application brought under Order 1 rule 10(2) of the Civil Procedure Rules
Relief refused
#Declaration that there exists no cause of action against the applicant
A cause of action existed when the suit was instituted; subsequent withdrawal of the restriction does not extinguish the claim, particularly on costs
Striking out of the 2nd Defendant's name from the proceedings
Retaining the applicant remains necessary to determine the plaintiff's remaining dispute, including costs
Costs of the application paid by the plaintiff
The application failed; costs follow the event under Section 27 of the Civil Procedure Act
Costs
The Notice of Motion dated 7th May, 2026 is dismissed with costs to the plaintiff.
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.
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.
I therefore find that the Plaintiff had a recognizable cause of action against the Applicant at the time the suit was instituted.
The fact that the Applicant may have acted in good faith, or that he believed that the persons who approached him were authorised agents of the 1st Defendant, does not, at this interlocutory stage, retrospectively remove the legal effect of the restriction.
The Applicant's name should therefore not be struck out on account of the subsequent withdrawal of the restriction.
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.
Issues in the judgment
#Conflicting suit filing dates
Conflicting suit filing dates
Conflicting affidavit dates
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nirmal Singh Bassi v Hetunach Contractors & 3 others", Case Analysis (2026). ELC Case No. 36 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6113/eng@2026-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.