https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11954

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **COMMERCIAL & TAX DIVISION** **CIVIL SUIT NO. 409 OF 2018** (Formerly ELC Case No. 71 of 2018) **EDCO AFRICA LIMITED……………………………………PLAINTIFF/RESPONDENT** **VERSUS** **FIRST COMMUNITY BANK LIMITED** **(now PREMIER BANK LIMITED)………………………………………..1ST DEFENDANT** **SILVER TRADE COMPANY LIMITED……………………….………..2ND DEFENDANT** **IBRAHIM RASHID ABDULLAHI ABDI………………..……………….3RD DEFENDANT** **ROBERT ALONZO LANG'AT………………………………..………….4TH DEFENDANT** **HUSSEIN SHEIKH ADANI……………………………………………….5TH DEFENDANT** **ABDIKARIM MOHAMED ABDI………………………………………...6TH DEFENDANT** **ALBERT S. KULOBA……………………………………..7TH DEFENDANT/APPLICANT** **RULING** **Introduction and Background** 1. This Ruling determines the Notice of Motion dated 28th November 2025 filed by the 7th Defendant, **Albert S. Kuloba**, an advocate of this Court appearing in person, in which he seeks orders discharging him and striking out his name from these proceedings. 2. The Plaintiff’s suit, filed against the 1st to 6th Defendants and later amended to include the 7th Defendant, arises from a notice issued by the 1st Defendant to exercise its statutory power of sale over the Plaintiff’s property. 3. The Plaintiff’s case, as gleaned from the pleadings and submissions on record, is that the power of sale was founded on a further charge dated 20th April 2017, a document the Plaintiff disowns, and whose execution the 7th Defendant, in his capacity as an advocate, purportedly witnessed on behalf of the Plaintiff’s directors. It is that single act of attestation which underlies the 7th Defendant’s presence in this suit. 4. Aggrieved at being retained as a party notwithstanding what he contends is a complete absence of any claim against him personally, the 7th Defendant now moves this Court to have his name struck out. **The Application** 1. The application is anchored on the following grounds, briefly stated: that no cause of action is disclosed against the 7th Defendant in either the original or the amended plaint; that no adverse prayer is sought against him; that on a fair reading of the facts he is better suited as a witness than as a litigant; that his discharge would occasion no prejudice to the conduct of the suit; and that he is, in the circumstances, not a necessary party within the meaning of Order 1 Rule 10 of the Civil Procedure Rules. 2. The application is supported by the 7th Defendant’s own affidavit sworn on 28th November 2025, in which he depones that he is an advocate practising as A.S. Kuloba & Wangila Advocates; that he has filed his defence and is ready for trial; that neither the plaint nor the amended plaint discloses any reasonable cause of action against him or seeks any adverse order against him; and that this Court can, in the circumstances, pass an effective decree in his absence. **The Opposition** 1. The application is opposed. In a replying affidavit sworn on 10th February 2026, Elizabeth N. Magondu, a director of the Plaintiff, contends that the 7th Defendant’s assertion that he is not a necessary party is incorrect and devoid of merit. She depones that the 7th Defendant purported to witness the signatures of the Plaintiff’s directors on the further charge of 20th April 2017, yet neither she nor her co-director ever appeared before him, instructed him, or had any dealing with him whatsoever; that the Plaintiff never authorised the preparation of the further charge; and that these facts place him at the centre of the fraud alleged in the suit. 2. She annexes the impugned further charge and correspondence exchanged between the Plaintiff’s advocates and the 7th Defendant’s firm, the latter dated 25th January 2018. 3. The Plaintiff maintains that the 7th Defendant’s presence is essential for the Court to effectually and completely adjudicate the questions raised in the suit, particularly whether the further charge was properly executed or fraudulently procured, and that striking him out at this stage would occasion real prejudice to the fair determination of the matter. **Submissions** 1. The 7th Defendant, relying on *Samwel Ndura Kanyara v Mary Njambi Kariuki & Another* (2013) KEELC 144 (KLR), submits that where a plaint discloses no cause of action and seeks no relief against a party, that party ought to be struck out. He undertakes an item-by-item analysis of the prayers in the amended plaint and submits that none is capable of touching him, since he is neither a chargor nor a chargee, has no interest in the suit property, and merely witnessed the execution of the further charge in his professional capacity. 2. He further relies on this Court’s decision in *Martin Simiyu Kundu v William Mbugua & 3 Others* [2025] KEHC 5404 (KLR) for the proposition that a party seeking to be struck out bears the burden of proving that his presence is unnecessary, and submits that he has discharged that burden. 3. On the allegation that he was never instructed by the Plaintiff, he responds that it was the firm of Abib & Associates Advocates, and not the Plaintiff, that instructed the preparation of the further charge and requested him to witness its execution, and that if anyone is a proper party on that account, it is that firm and not himself, a mere attesting witness. 4. The Plaintiff, relying on *JMK v MWM & Another* [2015] eKLR, submits that Order 1 Rule 10(2) is to be interpreted liberally and is not confined to persons against whom relief is directly sought, but extends to all persons whose presence is necessary for a complete adjudication of the suit. 5. It submits that the 7th Defendant, by purporting to witness signatures that were, on the Plaintiff’s case, never in fact appended before him, is directly implicated in the fraud that founds the suit, and that his presence is indispensable to any determination of whether the further charge was properly or fraudulently executed. On costs, the Plaintiff relies on the Supreme Court’s decision in *Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others* [2014] eKLR for the principle that costs follow the event. **Issues for Determination** 1. Having considered the application, the affidavits and the rival submissions, I am satisfied that the following issues arise for determination: 2. What is the applicable legal test for removing a party under Order 1 Rule 10(2) of the Civil Procedure Rules, and on whom does the burden lie? 3. Whether, applying that test, the 7th Defendant has demonstrated that his presence in this suit is unnecessary. **Analysis and Determination** 1. I begin with the framework. Order 1 Rule 3 of the Civil Procedure Rules permits the joinder of persons as defendants where a right to relief is alleged to exist against them jointly, severally, or in the alternative, arising from the same transaction. 2. Order 1 Rule 10(2), the specific provision invoked here, empowers the Court, at any stage of the proceedings, to strike out the name of any party improperly joined, or to add a party whose presence is necessary to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit. 3. I note, for precision, that this application is not brought under Order 2 Rule 15 of the Civil Procedure Rules, which governs the striking out of a pleading for want of a reasonable cause of action and expressly excludes evidence on such an application. That distinction matters: this is not an attack on the sufficiency of the plaint as a pleading, but a contest over whether the 7th Defendant is a proper party to it, to be decided, as it must be, on the affidavit evidence placed before me. 4. It is immediately apparent that the 7th Defendant’s central plank is that no prayer in the plaint, or the amended plaint, is directed at him personally. This has been recognised, in **Board of Trustees Kenya Entrepreneurship Empowerment Foundation v M Y C 4 another 2016KEHC7424(KLR)**where the court held: *“This is quite distinct from a necessary party, whom, according to the Black’s Law Dictionary is determined as; A party who, being closely connected to a lawsuit, should be included in the case if feasible, but whose absence will not require dismissal of the proceedings. The definition of who a necessary party is was further illustrated by Havelock, J (as he then was) in Elisheba Muthoni Mbae v Nicholas Karani Gichohi & 2 Others (2014) eKLR where the learned Judge cited the case of Werrot & Co. Ltd & Others v Andrew Douglas Gregory & Others Nairobi (Milimani) H.C.C.C No. 2363 of 1998 (UR), where Ringera, J (as he was then) observed that; “The guiding principle in deciding whether to add a party is whether the presence of that party is necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit…* *As was enunciated by Ringera, J (as he then was) in Werrot & Co. Ltd & Others v Andrew Douglas Gregory & Others (supra), there are two (2) tests which are applicable in determining whether a party is necessary to a suit: i.e. (1) there is a right to some relief sought against the party sought to be added and (2) that there would be no effectual and complete decree in the absence of such party. This is what Order 1 Rule 10(2) explicitly sets out. A party, to be added to a suit, has to show that some interest, vested or otherwise, would be diminished or wasted, if such party is not made a party to the suit.”* 1. The courts have also cautioned against joining a person merely because he possesses relevant evidence. In **Amon v Raphael Tuck & Sons Ltd (1956) 1 All ER 273,** cited with approval in **Pizza Harvest Limited v Felix Midigo [2013] eKLR**, Devlin J observed that mere possession of relevant evidence would *"only make him a necessary witness"*, and not a party. On this reading, if the 7th Defendant’s only connection to the suit is that he witnessed a signature and can give evidence about it, he would appear to be misjoined. 2. That, however, cannot be the end of the enquiry, for two reasons. 3. First, the power to remove a party is one to be exercised with circumspection. In *D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another* [1982] KLR 1, the Court of Appeal (Madan JA) held, at paragraph 21, that a court ought to *"act very cautiously and carefully and consider all facts"* of a case before dismissing it for not disclosing a reasonable cause of action, or, as is directly pertinent here, for not being a proper party in the suit, without embarking prematurely on what is properly a trial of the issues. That caution applies with equal force to an application of the present kind: whether a defendant is properly before the Court is not to be resolved on a superficial reading of the prayers, divorced from the substance of the allegations pleaded against him. 4. Second, and more fundamentally, the right to relief formulation in *Werrot (supra)* is not the only recognised basis on which a person may properly remain, or be joined, as a party. Our courts, drawing on the persuasive authority of **Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55 (Supreme Court of Uganda),** applied by this Court in, among others, **Haji & Another v Kazungu & 49 Others [2023] KEELC 18883 (KLR),** have held that: *“A clear distinction is called for between joining a party who ought to have been joined as a defendant and one whose presence before the Court is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit. A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter…For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions in the suit one of two things has to be shown. Either it has to be shown that the orders, which the plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for the avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualifies, (on an application of a Defendant) to be joined as a co-defendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.”* 1. That principle was applied by this Court in **Civicon Limited v Kivuwatt Limited & 2 Others [2015] eKLR,** where it was held that any party reasonably affected by the pending litigation is a necessary and proper party who should be enjoined, requiring of him only *"sufficient interest in the suit"*, an interest which need not be the kind that must succeed at trial. The Court of Appeal reached a similar conclusion in **JMK v MWM & Another [2015] eKLR,** holding, by reference to the learned authors of Sarkar’s Code of Civil Procedure, that Order 1 Rule 10(2) ought to be interpreted liberally and widely, such that *"all persons necessary for a complete adjudication"* should be made parties, not merely those against whom relief is sought. 2. Applying these two competing strands to the facts before me, the question resolves into whether the 7th Defendant’s role, as pleaded, is merely that of an incidental witness to a transaction between others, or whether it goes to the root of the controversy the Plaintiff has brought to this Court. 3. On this, I am unable to accept the 7th Defendant’s characterisation of his own role as peripheral. The further charge of 20th April 2017 is not a collateral document; it is, on the Plaintiff's pleaded case, the very instrument whose validity the suit seeks to impugn, and upon whose alleged default the 1st Defendant's notice of sale, the trigger for the entire suit, is founded. Under Section 44(3) of the Land Registration Act, No. 3 of 2012, execution of an instrument effecting a disposition such as a charge, where made by a corporate body, must, in the absence of the corporate body's own execution provisions, be effected in the presence of an advocate, among other prescribed persons; and Section 45 of the same Act requires the person before whom execution takes place to verify the identity of the executants and satisfy himself that the instrument was executed freely and voluntarily. 4. The 7th Defendant's attestation was, therefore, not an idle formality but the very statutory safeguard the law prescribes to guarantee that the charge was validly and voluntarily executed. Where, as here, the beneficiary of that safeguard flatly denies ever appearing before the attesting advocate, the propriety of the charge's execution and the propriety of the attestation become, for practical purposes, one and the same question. 5. It follows that the 7th Defendant's presence is necessary, not because the Plaintiff has framed a specific prayer against him personally, but because no complete or effectual determination of whether the further charge was properly executed, the very question underlying the declaratory relief sought against the 1st Defendant, can be made without resolving the dispute over what, if anything, transpired before him on or about 20th April 2017. 6. That is the kind of necessity contemplated in *Departed Asians* and *Civicon*, and it satisfies even the narrower second limb of the *Werrot* test: a decree declaring the charge void for fraud in its execution, arrived at without any opportunity for the very advocate whose conduct is impugned to be heard, could not fairly be described as complete or effectual. 7. This last point bears emphasis. It would offend the basic requirements of fairness for this Court to make, in a suit to which he is not a party, a finding that necessarily reflects on the 7th Defendant’s professional conduct and integrity as an advocate of this Court, while denying him the opportunity to answer that allegation. The right to be heard before an adverse finding is made against one’s interests is is a core incident of a fair hearing. Striking out the 7th Defendant at this stage, before the disputed question of what occurred at the purported attestation is tried, risks precisely that outcome. 8. I am fortified in this conclusion by this Court’s own recent decision in *Martin Simiyu Kundu v William Mbugua & 3 Others* [2025] KEHC 5404 (KLR), where, on facts not dissimilar to these, a party sought to be struck out on the strength of documentary evidence suggesting he was not the relevant actor, only for the opposing party to point to conflicting evidence. This Court held that the party seeking to be struck out *"bore the burden of proving that his presence in the suit is not necessary"*, and that where the record discloses genuinely conflicting evidence on the very question upon which the applicant’s removal depends, that conflict is not one to be resolved on affidavit at an interlocutory stage but ought to be left for trial. 9. The parallel to the present matter is exact. The 7th Defendant says he witnessed the signatures at the request of the instructing firm; the Plaintiff says its directors never appeared before him at all. That is not a question this Court can, or should, resolve on affidavit at this stage; it is a question for trial. 10. I have also considered the authority principally relied upon by the 7th Defendant, *Samwel Ndura Kanyara v Mary Njambi Kariuki & Another* (2013) KEELC 144 (KLR), but find it distinguishable on two grounds. First, that application was brought and determined under Order 2 Rule 15 of the Civil Procedure Rules, on the footing that the plaint as drawn was, in the words of the learned Judge, *"wholly unintelligible, whose intention cannot be discerned"*, and incapable of cure by amendment; it was a case where no coherent cause of action could be discerned against anyone, let alone the applicant. 11. That is not this case: the amended plaint here identifies a specific document, a specific date, and a specific role played by the 7th Defendant in respect of it, and, whatever view is ultimately taken of the merits, is intelligible and discloses a coherent narrative. Second, that application proceeded under Order 2 Rule 15, whereas the present one proceeds under Order 1 Rule 10(2); the two provisions serve different purposes and are not interchangeable. 12. Therefore, it is not open to the 7th Defendant, on the material presently before me, is to have that question resolved in his favour at the interlocutory stage, on affidavit, in the face of a squarely conflicting account from the Plaintiff. 13. In light of the foregoing, I find that the 7th Defendant has not discharged the burden resting on him of showing that his presence in this suit is unnecessary. The application, though ably argued, is premature and must fail. **Disposition** 1. For the reasons set out above, I make the following orders: 1. The Notice of Motion dated 28th November 2025 is hereby dismissed. 2. The 7th Defendant shall remain a party to Civil Suit No. 409 of 2018 and shall proceed to defend the suit on the merits. 3. Each party shall bear their own cost of this application **It is so ordered.** **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 30TH DAY OF JULY 2026.** **BENARD WAFULA MURUNGA** **JUDGE** HIGH COURT OF KENYA In the presence of: *Ongegu for the Plaintiff/Respondent* *Wanjala for the 5th Defendant/Respondent* *Albert S. Kuloba, 7th Defendant/Applicant* *Odeny h/b Abdullahi for 6th Defendant/Respondent* *Court Assistant: Kevin Babu*