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)

3. The Application is supported by the extremely brief Afidavit of Martin Njeru Nyaga, counsel for the 1st Defendant who asserts that the Plaint does not disclose any cause of action against the 1st Defendant. According to him, the 1st Defendant has no knowledge of the Plaintifis nor the suit property. 4. What I understand the 1st Defendant to be seeking is the striking out of the Plaintifis’ suit against him on the basis that it discloses no reasonable cause of action against him. Plaintifis’ Case 5. The 1st Defendant’s Application is vehemently opposed by the Plaintifis through the replying afidavit of James Nyabuga Orwenyo sworn on 7th April, 2025. He explains that oficial search and green card obtained prior to filing of this suit revealed that the suit property was indeed registered in the name of James Njoroge Gitau. 6. It is alleged that when the 1st Defendant was contacted by the Plaintifis’ counsel, he stated that the suit property belonged to him and that his counsel would be dealing with the matter. He proceeded to enter appearance and file a statement of defence in this matter dated 8th July 2024. 7. The Plaintifis accuse the 1st Defendant of seeking to get an escape route after being cornered for fraudulently participating in transfer of the suit property. Additionally, they avow that the 1st Defendant only swore an afidavit disowning the fraud when he was arrested. 8. Accordingly, the s pray for dismissal of the Application with costs because it is unmerited, frivolous, and an afterthought. 1st Defendant’s Further afidavit 9. The 1st Defendant in his further Afidavit sworn on 5th June, 2025, claims that he had sworn an afidavit dated 24th August, 2024 formally requesting the 2nd Defendant to expunge his name from the register of the suit property because it was incorporated without his knowledge and consent. The 1st Defendant denies ever being arrested and instead deposes that he voluntarily presented himself to the Directorate of Criminal Investigation. Thus, he pleads with the court to allow his Application as prayed as he is a stranger to this suit. Court directions 10. On 8th May, 2025, the court directed parties to file written submissions. Both sides complied. The court has considered the submissions in the writing of this ruling. Issue for determination 11. Upon cautious examination of the Application, the response thereto as well as the submissions by the parties, the only issue for determination is whether the 1st Defendant’s application is merited. Determination 12. The power of court to struck a wrongly enjoined party from a suit is entrenched in Order 1 Rule 10(2) of the Civil Procedure Rules which provides as follows “ 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, whether as plaintifi or defendant, be struck out, and that https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7118/eng@2025-10-14 2

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the name of any person who ought to have been joined, whether as plaintifi or defendant, or whose presence before the court may be necessary in order to enable the court efiectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” 13. What makes a person to be classified as an necessary party in a claim was expounded in the dictum of Devlin, J in Amon v Raphael Tuck & Sons Ltd (1956) 1 All ER 273 alluded to in Pizza Harvest Limited v Felix Midigo [2013] KEHC 57 (KLR) where Havelock J stated as follows; “ What makes a person a necessary party? It is not of course, merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance and is afraid that the existing parties may not advance them adequately …the Court might often think it convenient or desirable that some of such persons should be heard so that the court could be sure that it had found the complete answer, but no one would suggest that it would be necessary to hear them for that purpose. 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, and the question to be settled, therefore, must be a question in the action which cannot be efiectually and completely settled unless he is a party. 14. The 1st Defendant’s application however is brought under the provisions of Order 2 rule 15 of the Civil Procedure Rules and therefore ought to have been framed difierently. The 1st Defendant contends that he ought to be struck out from the proceedings because no cause of action has been disclosed against him. He further claims that he has never had any dealings in respect of the suit property with the Plaintifis neither is he aware that the suit property belongs to Jason Nyariki Orwenyo. Concerning why the suit property was fraudulently registered in his name, his explanation is that it was undertaken without his knowledge and consent. 15. Amongst the prayers sought by the Plaintifis include one for a permanent injunction restraining the 1st Defendant from interfering with the suit property, cancellation of his title deed and declaration that the registration and transfer of suit property to 1st Defendant was fraudulently undertaken. 16. Going by the Plaintifis assertions and prayers sought, 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), where the Court of Appeal stated as follows; “ A cause of action is an act on the part of the defendant, which gives the plaintifi his cause of complaint.” 17. That definition was given by Pearson J. in the case of Drummond Jackson vs. Britain Medical Association (1970) 2 WLR 688 at pg 616. In an earlier case, Read vs. Brown (1889), 22 QBD 128, Lord Esher, M.R. had defined it as follows:“ Every fact which it would be necessary for the plaintifi to prove, if traversed, in order to support his right to the judgement of the court”. 18. The 1st Defendant entered appearance on 19th June, 2024 through a memorandum of appearance dated 18th June, 2024. Prior to filing this Application which is the subject of this Ruling, the 1st Defendant filed his statement of Defence on 8th July, 2024 which was sequentially responded to the Plaintifi. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7118/eng@2025-10-14 3

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19. 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. The Plaintifis definitely have a reason to complain against him in spite of his assertion that the title was mistakenly issued in his name without his knowledge and consent. 20. Taking the aforementioned factors into consideration, I find that the Plaintifis were justified to sue 1st Defendant in this suit. 21. 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. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 14TH DAY OF OCTOBER 2025. M.D. MWANGI JUDGE In the virtual presence of: Mr. Orondo Tuli for the Plaintifis/Respondents Ms. Muema h/b for Mr. Njeru for the 1st Defendant/Applicant N/A by the 2nd and 3rd Defendants Court Assistant: MPoye M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7118/eng@2025-10-14 4

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