https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4094

Mokua & 10 others v Estate of the Late Kahuho Kuogothokа & 7 others (Land Case (Originating Summons) E029 of 2025) [2026] KEELC 4094 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELC 4094 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Land Case (Originating Summons) E029 of 2025 OA Angote, J July 2, 2026 Between David Ogega Mokua & 10 others & 10 others & 10 others Applicant and Estate of the Late Kahuho Kuogothokа 1st Respondent Josagara Academy Limited 2nd Respondent Azofco General Merchants Ltd 3rd Respondent Commercial International Bank (CIB) Kenya Ltd 4th Respondent Joel Kanyi Kimani 5th Respondent Josephine Njeri Ngugi 6th Respondent Registrar Of Titles 7th Respondent Chief Lands Registrar 8th Respondent Ruling 1.Vide the Notice of Motion dated 11th July, 2025, brought pursuant to the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act, Order 2, Rule 15 (1) (a), (b) and (d) and Order 51, Rule 1 of the Civil Procedure Rules, 2010, the 4th Respondent/Applicant seeks the following reliefs:i.That the suit against the 4th Respondent be struck out and/or dismissed with costs.ii.That the costs of this application be provided. 2.The Motion is premised on the grounds on the face thereof and supported by the affidavit of Lynette W. Kamande, the 4th Respondent's head of legal and company secretary, of an even date. 3.She deponed that the Applicants commenced the present suit by way of an Originating Summons dated 29th May 2025, seeking various reliefs against the Respondents and that the suit is founded on a claim of adverse possession over Land Reference No. 9363/85/3, I.R. No. 164396, now known as Title No. Nairobi Block 221/1430. 4.It is the Applicants case, she explained, that they have been in open, continuous, exclusive, and uninterrupted occupation, possession, and use of the suit property for a period exceeding seventeen (17) years and have consequently acquired ownership rights thereto by adverse possession. 5.According to Ms Kamande, the 4th Respondent has no proprietary or legal interest whatsoever in the suit property and is therefore a stranger to the subject matter of these proceedings. Further, that the Originating Summons does not disclose any reasonable or sustainable cause of action against the 4th Respondent as contemplated under Order 2 Rule 15(1)(a) of the Civil Procedure Rules, 2010. 6.In response, the Plaintiffs(sic)/Applicants filed grounds of opposition dated the 30th December, 2025 premised on the grounds that:i.The 4th Respondent’s application dated 11th July, 2025 is mala fides, misconceived, scandalous, frivolous, vexatious and a total abuse of this court’s process.ii.The 4th Respondent’s application dated 11th July, 2025 is devoid of merit and its object is to abuse the process of the court or unnecessarily delay justice or work a clear injustice.iii.It is prima facie that the 4th Respondent’s application dated 11th July, 2025 is intent of obfuscating the just hearing and determination of this suit as the 4th Respondent is a necessary party which has been involved deeply with the suit property and their participation in this suit is integral to enable this court arrive at a just determination.iv.The 4th Respondent’s and/or its employees/officials may be implicated in fraud, illegal and unlawful dealings with ramifications on the root title and it is imperative this Honourable Court maintains their presence and participation.v.There are reasonable causes of action against the 4th Respondent and their participation ought to be maintained.vi.The 4th Respondent has material evidence which they ought to adduce and assist this Honourable court in arriving at a just determination.vii.The 4th Respondent’s application dated 11th July, 2025 is borne out of and premised on gross misapprehension of the facts and the law on the striking off a necessary party in a suit.viii.On the basis of the aforementioned grounds, the Plaintiffs shall seek for dismissal in limine of the 2nd and 3rd Defendant’s application dated 29th January 2026 with costs. 7.The Applicants equally filed a replying affidavit sworn by the 1st Applicant, David Ogega Mokua, on 30th December 2025. He deponed that since he and his co-Applicants took occupation, possession, and use of the suit property in January 2008, they have remained in open, continuous, exclusive, and uninterrupted possession thereof. 8.The 1st Applicant deposed that on 26th May, 2021, the 3rd Respondent obtained a loan facility of USD 1,400,000 (equivalent to Kshs 180,950,000) from Mayfair CIB Bank Limited, now known as Commercial International Bank (CIB) Kenya Limited, the 4th Respondent herein and offered the suit property as security and that consequently, a charge was registered against the suit property in favour of the bank on the same date. 9.According to the deponent, the participation of the 4th Respondent is necessary for the just determination of the dispute, particularly to enable the court ascertain the circumstances under which the bank verified the authenticity and legitimacy of the 3rd Respondent’s title before accepting the suit property as security. He contended that there appeared to have been a scheme to defraud the 4th Respondent, noting that there was no evidence that the suit property had been properly valued before the charge was created. 10.He further averred that in HCCOM No. E217 of 2024, the 4th Respondent had expressed reservations regarding the legitimacy of the 3rd Respondent’s title and had taken the position that the title was tainted by fraud. In his view, it is necessary for the court to interrogate how the bank nonetheless proceeded to accept the title as security and subsequently instructed auctioneers to realize the charged property despite those concerns. 11.He urged that in view of the foregoing, a prima facie claim has been disclosed against the 4th Respondent and striking it out from the proceedings will shield it, being a necessary party, from scrutiny and impede the court's ability to effectually and completely determine all the issues in controversy. 12.The 3rd Respondent intimated that it would not participate in this motion. The 5th and 6th Respondents filed grounds of opposition dated 14th April, 2026 premised on the grounds that:i.The Application dated 11th July 2025 is bad in law, misconceived, incompetent, and incurably defective.ii.The Application is misconceived because in line with Order 1, Rule 5 of the Civil Procedure Rules it is not necessary that every defendant be interested as to all the reliefs claimed in any suit.iii.The 4th Respondent is a proper party to the proceedings herewith in line with provisions of Order 1, Rule 10(2) of the Civil Procedure Rules and though no relief may be claimed against the 4th Respondent, its presence is necessary for a complete and final decision of the questions involved in the suit herewith.iv.The 4th Respondent exercised its statutory power of sale over all that property known as LR 9363/85/3, IR 164398 now converted to Title Number Nairobi Block 221/1430 (the suit property) and charged the same against the 3rd Respondent and the Applicants allege fraud on the part of the 3rd and 4th Respondent.v.The 4th Respondent having charged the property, the 3rd Respondent defaulted and the 4th Respondent exercised its statutory power of sale wherein the 5th and 6th Respondent emerged the highest bidders and acquired the suit property by way of sale by Public Auction.vi.The Applicants impugn the sale by public auction and allege fraud on the part of the 4th Respondent and as such the 4th Respondents participation in this suit will enlighten the court on the charge, default by the 3rd Respondent and subsequent sale by public Auction.vii.Allowing the Application dated 11th July 2025 will deprive this Honorable Court of the benefit of the full scope of the transactions affecting the title of the suit property that is subject of these proceedings. 13.The 9th Respondent filed grounds of opposition dated 31st March, 2026 premised on the grounds that:i.The Application is misconceived, premature and an abuse of the Court process.ii.The 4th Respondent is a necessary and proper party to these proceedings within the meaning of Order 1, Rule 10(2) of the Civil Procedure Rules 2010.iii.The issues raised in the Originating Summons directly implicate the 4th Respondent, including but not limited to the charge over the suit property and the exercise of statutory power of sale, which form part of the chain of transactions affecting the suit property.iv.The Plaintiffs have made substantive allegations touching on the validity and legality of the transactions involving the 4th Respondent, which cannot be effectually and completely determined in its absence.v.The presence of the 4th Respondent before this Honourable Court is necessary to enable the Court effectually and completely adjudicate upon and settle all questions relating to the suit property, including the validity of any interests created thereon.vi.The 4th Respondent’s involvement in the chain of dealings over the suit property renders it a material witness and participant, and its removal would occasion prejudice to the fair and complete determination of the dispute.vii.The dispute herein concerns land alleged to be public land, and all parties involved in its purported alienation and encumbrance ought to remain before Court to facilitate a comprehensive determination in the public interest.viii.Striking out the 4th Respondent at this stage would risk piecemeal litigation and inconsistent findings, and is therefore contrary to the overriding objective of the court.ix.The application lacks merit and ought to be dismissed with costs. 14.The 4th Respondent, through its Assistant Manager, Recovery and Litigation, Mr. Fredrick Nyabutu, swore a further affidavit dated 13th April 2026. He deponed that, contrary to the Applicants’ assertions, L.R. No. 9363/85/3 (I.R. No. 164396), now converted to Block 221/1430, was duly valued prior to its sale. He further averred that HCC COM E217 of 2024 is not before this court and is unrelated to the present proceedings, which concern a claim for adverse possession. It was his position that the suit property has at all material times remained private property and did not constitute public land. 15.According to the 4th Respondent, upon the exercise of its statutory power of sale, it ceased to have any proprietary interest in the suit property rendering its continued participation herein unnecessary and that the Respondents have not demonstrated any prejudice that they will suffer should they be struck off the proceedings. 16.The 4th Respondent filed submissions on 13th April, 2026. Counsel submitted that a party must demonstrate a respondent’s interest in, and liability arising from the subject matter of a suit as required under Order 4 Rule 5 of the Civil Procedure Rules. Relying on Joseph Njau Kingori vs Robert Maina Chege & 3 Others [2002] KEHC, counsel argued that a party with no interest in the dispute is improperly joined. 17.In this case, it was submitted, the 4th Respondent’s role in relation to the suit property was limited to the registration of a charge while the property was still registered in the name of the 3rd Respondent, and that upon the 3rd Respondent’s default, the 4th Respondent exercised its statutory power of sale, culminating in the transfer of the property to the 5th and 6th Respondents. 18.It was submitted that as such, upon completion of the sale and transfer, the 4th Respondent ceased to have any proprietary or legal interest in the suit property and, consequently, had no further involvement in the matters forming the subject of the present proceedings. 19.Counsel further contended that the Originating Summons does not disclose any reasonable cause of action against the 4th Respondent as contemplated under Order 2 Rule 15(1)(a) of the Civil Procedure Rules, and that the Applicants have neither identified any wrongful conduct on the part of the 4th Respondent nor pleaded any facts capable of grounding a claim or warranting the grant of relief against it. In support of this position, counsel relied on D.T. Dobie & Company (Kenya) Limited vs Muchina & Another [1980] KECA3 (KLR) and Attorney General & Another vs Andrew Maina Githinji & Another [2016] eKLR. 20.It was urged that the 4th Respondent is not a necessary party to the claim for adverse possession and that the court has jurisdiction under Order 1 Rule 10(2) of the Civil Procedure Rules to strike it out of the proceedings. According to counsel, its continual participation unfairly prejudices it by entangling it in litigation where no claim lies against it. 21.In support, counsel cited the cases of Joseph Njau Kingori vs Robert Maina Chege & 3 Others [2002]KEHC 1192(KLR), and Try Towers Management Ltd & 2 Others vs NCBA Bank Kenya Plc & 3 Others[2025]KEHC 16497(KLR), and the Court of Appeal decision in Civicon Limited vs Kivuwatt Limited & 2 Others[2015]eKLR. 22.The 5th and 6th Respondents filed their submissions on 29th May 2026. Counsel argued that the 4th Respondent is a necessary party within the contemplation of Order 1 Rules 5 and 10(2) of the Civil Procedure Rules, its participation being essential for the effectual and complete adjudication of the issues arising in the suit. 23.Counsel emphasized that the test is not whether a specific relief is sought against a party, but whether that party’s presence before the court is necessary to enable the court to fully and conclusively determine all matters in controversy. Reliance was placed on Matemu vs Trusted Society of Human Rights Alliance & 5 Others (Civil Appeal No. 290 of 2012) [2013] KECA 445 (KLR). 24.According to counsel, the 4th Respondent is centrally involved in the transactions giving rise to the dispute, having accepted the charge over the suit property, exercised its statutory power of sale upon default, and facilitated the auction and subsequent transfer of the property to the 5th and 6th Respondents. 25.It was submitted that any examination of the validity of the title held by the 5th and 6th Respondents would necessarily require scrutiny of the aforesaid process and that the 4th Respondent as the custodian of key documents and evidence relating to those transactions is therefore a necessary party for the fair and complete determination of the suit. 26.Counsel further submitted that the application is premature having been filed barely six weeks after the commencement of the suit, at a stage when pleadings had not closed and the issues for determination had yet to crystallize. Relying on D.T. Dobie & Company (Kenya) Ltd vs Joseph Mbaria Muchina & Another [1980] eKLR, counsel contended that the power to strike out pleadings is a draconian remedy that ought to be exercised only in the clearest of cases and not as a means of insulating a party from judicial scrutiny. 27.Having considered the pleadings and submissions, the sole issue for determination is whether the 4th Respondent should be struck out. The 4th Respondent asks this court to strike it from these proceedings, contending that it has no proprietary or legal interest in the suit property. It contends that it was a chargee after accepting the suit property as security for a loan advanced to the 3rd Respondent. It maintains that upon the 3rd Respondent's default, it lawfully exercised its statutory power of sale, resulting in the transfer of the property to the 5th and 6th Respondents, after which it ceased to have any interest in the property. 28.The 4th Respondent further argues that the Originating Summons, which is founded on a claim for adverse possession, discloses no reasonable cause of action against it and that its continued participation in the proceedings is unnecessary and prejudicial. 29.In response, the Applicants assert that the 4th Respondent is a necessary party whose participation is indispensable to the effectual and complete determination of the dispute. They contend that the bank accepted the suit property as security, registered a charge over it, and subsequently exercised its statutory power of sale despite questions surrounding the legitimacy of the 3rd Respondent's title. 30.According to the Applicants, the court must interrogate the circumstances under which the 4th Respondent verified the title, accepted it as security, valued the property, and proceeded with the realization process. They further maintain that the 4th Respondent is in possession of crucial evidence relating to the charge, valuation, statutory notices, auction process, and transfer of the property, and that striking it out would hinder a full inquiry into the issues raised in the suit. 31.The 5th, 6th, and 9th Respondents similarly opine that the 4th Respondent is both a proper and necessary party within the meaning of Order 1 Rules 5 and 10(2) of the Civil Procedure Rules. They agree that the 4th Respondent played a central role in the chain of transactions affecting the suit property, having accepted the charge, exercised its statutory power of sale, conducted the auction through which the 5th and 6th Respondents acquired title, and effected the subsequent transfer. 32.They further contend that removing the 4th Respondent from the proceedings would deprive the court of relevant evidence, risk piecemeal litigation, and impede the comprehensive adjudication of all issues touching on the suit property. 33.It is trite that a person joined as a defendant in a suit ought to be one against whom a right to relief is alleged to exist, whether jointly, severally, or in the alternative, and whose participation gives rise to a common question of law or fact requiring determination by the court. This principle is embodied in Order 1 Rule 3 of the Civil Procedure Rules, which provides that:“All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise.” 34.Where, however, a party has been improperly joined, the Civil Procedure Rules vest the court with the power to strike out such a party from the proceedings. Equally, the court may retain or add a party whose presence is necessary to enable it effectually and completely adjudicate upon, and settle all questions involved in the suit. That power is conferred by 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 plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” 35.The jurisprudential test for determining who a necessary party is was extensively discussed in Pizza Harvest Limited vs Felix Midigo [2013] eKLR, where the court, while adopting the exposition of Devlin J. in Amon vs Raphael Tuck & Sons Ltd (1956) 1 All ER 273 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 effectually and completely settled unless he is a party.” 36.It is apparent from the foregoing that the issue as to whether a party ought to be substituted, added or struck out of civil proceedings is an issue of fact. As such, evidence must be availed to that end. 37.In the present case, the Applicants commenced these proceedings by way of an Originating Summons dated 29th May 2025, principally seeking declarations that they have acquired title to L.R. No. 9363/85/3, I.R. No. 164396, now Nairobi Block 221/1430, through adverse possession. They further seek declarations that the transfers of the suit property to the 2nd and 3rd Respondents, as well as the charge registered in favour of the 4th Respondent, were subject to their overriding rights arising from their alleged occupation and possession of the property. 38.The Applicants also seek for a declaration that the subsequent auction, transfer, and registration of the suit property in favour of the 5th and 6th Respondents was subject to those overriding rights, together with consequential orders relating to the transfer and registration of the property in their favour. 39.In addition, the Applicants seek a declaration that the registration of the suit property in the name of the 2nd Respondent, and all subsequent transfers and registrations, are illegal on the ground that the property was unlawfully excised from L.R. No. 9363/85, which was registered in the name of the late Kahuho Kuogothoka. The Applicants further seek injunctive relief against all the Respondents. 40.A consideration of the Originating Summons reveals that the Applicants' case is not confined to a bare claim for adverse possession. In addition to asserting rights acquired through long occupation, the Applicants challenge the various transactions through which the suit property passed from the 2nd Respondent to the 3rd Respondent, was charged to the 4th Respondent, and was ultimately sold and transferred to the 5th and 6th Respondents. 41.It is true, as contended by the 4th Respondent, that it no longer holds any proprietary interest in the suit property following the exercise of its statutory power of sale. However, the test under Order 1 Rule 10(2) of the Civil Procedure Rules is not whether a party presently retains an interest in the property, but whether its presence before the court is necessary to enable the court effectually and completely adjudicate upon and settle all the questions involved in the suit. 42.A party may therefore remain a necessary party even in the absence of a current proprietary interest where the issues for determination arise from, or are directly connected to, its conduct and participation in the transactions under challenge. 43.In the present case, the 4th Respondent's involvement in the chain of transactions affecting the suit property cannot be said to be merely incidental. The charge registered in its favour, the realization of the security through the exercise of its statutory power of sale, and the subsequent transfer of the property to the 5th and 6th Respondents form an integral part of the factual and legal matrix that the court will be required to examine in determining the issues raised in the Originating Summons. Indeed, the Applicants have specifically pleaded facts and sought reliefs that directly implicate actions undertaken by the 4th Respondent in relation to the suit property. 44.Consequently, this court is satisfied that the presence of the 4th Respondent is necessary for the effectual and complete adjudication of the questions raised in the Originating Summons. Whether the claims advanced against it are meritorious, legally tenable, or capable of ultimately succeeding is a distinct question that can only be determined upon the full hearing of the suit. 45.In the end, the court finds the present Motion dated 11th July, 2025 to be unmerited. The same is dismissed with costs. DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 2ND DAY OF JULY, 2026.O. A. ANGOTEJUDGEIn the presence of;Mr. Kimaiti for 5th and 6th RespondentsMs Ombwori for Ms Wanjala for 9th RespondentCourt Assistant: Tracy