https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2991

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MILIMANI, NAIROBI** **ELCLC CASE NO. E445 OF 2025** **CATHERINE WANGARI GACINGA….……….…. PLAINTIFF/RESPONDENT (Suing as the Legal Representative of the Estate of the Late Priscilla Njeri Gachinga-Deceased)** **-VERSUS-** **HIPPO PLUS HOUSING COOPERATIVE SOCIETY LIMITED.…………………….…………………..………1ST DEFENDANT /RESPONDENT** **THE CHIEF LAND REGISTRAR ………………………2ND DEFENDANT/ RESPONDENT** **LOISE WABURI GACINGA……………….……….……3RD DEFENDANT/APPLICANT (Sued as the Legal Representative of the late Gacinga Nduni Ngongu)** **AND** **FAMILY BANK LIMITED………….……………….…….…………INTERESTED PARTY** **SUSAN NJERI PETER…………………………………. INTENDED INTERESTED PARTY** **RULING** **Introduction** 1. There are two applications before this court. The 1st is the intended interested party’s application for joinder dated 30th September 2025 and the 2nd is the Applicant/3rd Defendant’s notice of motion application dated 21st October 2025 seeking to have the 3rd defendant’s name struck out from the suit 2. The intended interested party’s application was premised on grounds as in her supporting affidavit being that she was the wife to the son of the deceased who was the vendor in the transaction. That she was living on the suit property and any determination on the property would directly affect her rights on the property hence a necessary party in the proceedings Reply to the intended interested party’s application 1. The plaintiff filed a replying affidavit in support of the intended interested party’s application. She deponed that the intended interested party was a was a beneficiary of the estate of who had been staying on the suit property and any decision involving the suit property would directly touch on her rights hence need to be enjoined. 2. The 1st defendant in opposition filed a replying affidavit sworn by one Peter Kiongo Karinge.He deponed that the applicant simply made statements of being a beneficiary by virtue of being the wife of the deceased’s son who had gone missing, but had not provided any evidence to corroborate the same. That further she had indicated to be staying on the premises without also producing any evidence and as such had not demonstrated any legally recognizable proprietary interest in the suit property to warrant issuance of the joinder orders. That further the applicant in her representative capacity as the legal administrator of the deceased’s estate was articulating the interest of the beneficiaries Applicant’s submissions 1. The applicant reiterated the content in her supporting affidavit that she had demonstrated an identifiable legal right ought to be protected by the court hence the need to be enjoined as a party as her presence would enable the court effectively adjudicate on the issues raised relying on the provisions of order 1 rule 10 (2) of the civil procedure rules and in the case of **In Muruatetu & Another -Vs- Republic & 5 Others [2016] eKLR.** She submitted that she would suffer prejudice should she not be allowed to participate in the proceedings. 1st defendant’s submissions The 1st defendant submitted that the applicant had not demonstrated any legal right that ought to be protected by the court being that she was not a beneficiary of the deceased’s estate. That her argument was premised on the fact that she was a beneficiary to the estate of the deceased’s late wife who had jointly owned the property with the deceased, but counsel countered this argument pointing to the fact that at the death of the deceased’s wife the joint tenancy automatically transferred ownership to the deceased. That further the applicant had not substantiated her claims that she was the daughter in law to the deceased and that her husband had gone missing whom she had also not proven she had the capacity to legally represent. Based on this counsel indicated she lacked locus stand. Counsel submitted that the plaintiff being the legal administrator of the estate of the deceased was capable of representing the entire estate including the applicant on any claims. Counsel relied in the decision in **Janmohmed (suing as the Executrix of the estate of the late HE Daniel Toroitich Arap Moi & Another Vs Lagat & 4 other; Tony & Another (intended interested party ) petition 17 (E021 & 24 (E027) of 2022 consolidated (2023)KESC 64 (KLR)14July 2023(Ruling)** Counsel further submitted that the applicant seeks to advance her entitlement in the estate of the deceased’s alter wife which is a totally different cause of action from the suit deviating from what has been stated by courts that an interested party should not introduce new issues or frame issues for determination outside the limits set out by primary parties to the suit which is whether the deceased had the authority to sell the suit property or not. 1. The 3rd defendant’s application was premised on grounds as in the supporting affidavit sworn by the applicant on the following grounds interalia 2. The Applicant is improperly joined as a party to this suit. 3. The Applicant is improperly sued as the Legal Representative of the Estate of the late, Gacinga Nduni Ngongu. ELC CASE NO. E445 OF 2025 4. The Applicant lacks the capacity to represent the Estate of the late, Gacinga Nduni Ngongu. 5. No reasonable course of action has been disclosed against the Applicant/ 3rd defendant. 6. No orders have been sought against the Applicant/3rd defendant. Plaintiff’s reply 1. The plaintiff filed replying affidavit sworn on 9th February 2026. She deponed that the 3rd defendant was rightfully sued having participated in the sale of the suit property to the 1st defendant which sale she knew to be a nullity being that the suit property was matrimonial home hence an inheritance for the family .She deponed that her inclusion as a legal representative is curable under Order 1 rule 10 of the civil procedure rules 2. The intended interested party Susan Njeri Peter also filed a replying affidavit dated 5th January 2026 where she deponded the 3rd defendant to be a necessary party in the suit having participated in the sale agreement of the suit property and receiving monies over the same from the 1st defendant in her own personal account. She deponed that the participation of the 3rd defendant is necessary to enable the court effectively adjudicate on the matter deponed that she did this knowing very well she ws not a legal administrator to the deceased’s estate and that she cannot therefore rely on her own illegality to prevent accountability on her part 3. The court directed the application to be dispensed with by way of written submissions Applicant’s submissions. 1. The issues raised for determination was as below Whether the 3rd Defendant is a necessary party to this suit The applicant submitted that she was not the legal representative to the estate of the deceased and had therefore been sued improperly in the plaint and the right course of action would be to strike her name out being that the representative capacity was a non-existent capacity She further deponded that the plaint and further amended plaint did not disclose any reasonable course of action as against her. That the Plaintiff had neither demonstrated what right belonging to her has been breached by the 3rd Defendant nor had she demonstrated what damage she has suffered from the said breach indicating that the suit as against the 3rd Defendant is untenable and that the 3rd Defendant’s name should be struck out from the suit. The applicant further relied on the provision of Order 2 Rule 15(1) (a), where it stated that a pleading that discloses no reasonable cause of action must be struck out and being that the cause of action is at the heart of the complaint the suit can therefore not stand unless there is a cause of action. Plaintiff’s /respondent’s submissions 1. The plaintiff filed submissions dated 19th March 2026 where she reiterated the contents as in her replying affidavit. She further relied on order 1 rule 10 of the civil procedure rules where she submitted that the rules provided that if the court is satisfied that a person was wrongfully sued in a suit, may order that the name of that person be struck out and the rightful persons be enjoined in the suit. That further the court has the discretion to allow a defendant to be added or substituted by an amended plaint. She relied on the case of Pravin Vs John Ward & Another (2015) eKLR. She asked the court to ask itself the question that if the plaintiff were to succeed in the suit who would be the party to compensate, in this case it would be the 3rd defendant since she is the beneficiary of the sale **Analysis and determination** 1. I have reviewed both applications the one filed by the 3rd defendant dated 21st October 2025 seeking to have her name struck out in the suit and the one filed by the intended interested party dated 30thSeptember 2025 seeking to be enjoined in the matter. 2. I will 1st address the proposed interested party application for joinder first. The sole issue for determination is whether the application is merited Order 1 Rule 10(2) of the Civil Procedure Rules provides as follows:- “The Court may at any stage of the proceedings, either upon or without Application to 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 Plaintif or Defendant, be struck out, and that the name of any person who ought to be joined whether as Plaintiff or Defendant, or whose presence before Court may be necessary in order to enable Court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added”. It is therefore evident that a party seeking joinder must demonstrate how the suit would affect his interests. In the case of **Direct Line Assurance Co. Ltd v Attorney General [2011] eKLR** the Court pronounced itself as follows: - “The law is that only those who are entitled to a claim or be affected by the outcome can legitimately seek protection from the Court. The applicant has not demonstrated how the legal notice would affect its interests and that of the public it purports to represent. It is not every person who can approach the Court for redress of his grievances but persons with legitimate interests and stake in the outcome and the effects of the decision complained against.” Further the Supreme Court in **Francis K.Muruateru & Ano v Republic & 5Others [2016] eKLR** set out the key elements for consideration in an Application for joinder as an Interested Party as follows:- 1. Joinder of a person because his presence will result in the complete settlement of all the question involved in the proceedings; 2. Joinder to provide protection for the rights of a party who would otherwise be adversely affected in law 3. Joinder to prevent a likely course of proliferated litigation. 4. In the case before this Court the plaintiff has sued the 1st defendant on the basis that it acquired the suit property in an illegal way the sale agreement being void hence need to cancel the title and have it registered in the name of the beneficiaries who were not consulted as at the time of the sale. She is seeking nullfication of title registered in the names of the 1st defendant and for injunctive orders and damages for trespass. The intended interested party seeks to be enjoined on the basis that she has an identifiable stake. She has not attached any substantial evidence to her application, to point to her interest in the suit property. She has attached a letter from the ministry of interior, and affidavit swearing to be the wife to the alleged lost son of the deceased who is her husband. In my view, all these documents do not prove her relationship to the deceased or her direct interests in the suit property. If indeed she is a beneficiary, something she is yet to prove, the plaintiff herein as the legal representative of the state will articulate all the grievances of the beneficiaries’e is therefore not a necessary party. 5. The court is enjoined under Section 1 A and B of the Civil Procedure Rules to give effect to the overriding objectives which include; the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of the available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties. 6. It would be inefficient disposal of the business of the court to add to a suit parties whose interests are already sufficiently represented. In the circumstances I find that the application has no merit and is dismissed with costs to abide the outcome of the main suit. 7. Moving on to the 3rd defendant’s application 1st and the issue for determination is whether the application is merited to have the 3rd defendant’s name struck off The 3rd Defendant has been sued in his capacity as the administrator of the estate of Gacinga Nduni Ngongu(deceased) who is the registered proprietor of land parcel number Nairobi/Block66/1527 the subject property of this suit. The 3rd defendant has claimed not to have locus standi to be sued as she is not the legal administrator of the estate facts that have been admitted by the respondent who has gone ahead to attach an amended plaint to capture the correct description of the 3rd defendant as just a party to the suit. The question the court will then be tasked to answer is whether the name of the 3rd respondent should be struck out from the suit having been amended to read just a defendant and not the legal representative. In order to determine whether the Applicant should be struck out from the suit, it is important to determine whether he is a necessary party. In the case of *Pizza Harvest Limited v Felix Midigo* (2013) eKLR, the court cited the case of *Amon v Raphael Tuck & Sons Limited* (1956) All ER 273 where it was held 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 no advance them adequately. ..the court might often think it convenient or desirable that some of such persons 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 necessary 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.”The definition of a necessary party is further illustrated by Havelock J in **Elisheba Muthoni Mbae v Nicholas Karani** *Gichoe & 2 Others* ( 2014) eKLR where the learned judge cited the case of **Werrot & Co Ltd & Others v Andrew Douglas Gregory & Others Nairobi** HCCC No. 2363 of 1998 (unreported) In this case, Ringera J observed as follows:“ The guiding principle in deciding whether to add a party is whether that party is necessary in order to enable the court to effectually and completely adjudicate upon all the questions involved in the suit. As stated in Sarkar’s Law of Civil Procedure, Vol 1 at Page 531-532, there are two tests in the application of this principle: * 1. He must be a necessary party 2. He must be a proper party 3. In the case of a defendant, there must be a relief owing from that defendant to the plaintiff 4. The ultimate order or decree cannot be enforced without his presence in the matter 5. His presence is necessary to enable the court to effectively and completely adjudicate upon and settle the questions involved in the suit.” 1. I have perused the Amended plaint and the Plaintiff have pleaded that the 3rd Defendant participated in the receiving of the sums in relation to the suit property over an agreement for sale that was entered into as between the 1st defendant and the deceased. That she was unjustly enriched having received the monies inn her own personal account at the detriment of the legal beneficiaries. First, I would like to point that the amended plaint has been filed without leave of the court and hence is not properly before this court. Nonetheless the applicant has pleaded the provision of **order 1 rule 10 of the civil procedure rules,** and in looking at the entire amended plaint, there is no cause of action as against the 3rd defendant. The issue that comes out is that the plaintiff seeks to have the suit property registered in the name of the estate which suit property was sold by the deceased and not the 3rd defendant. The prayers sought are as against the 1st respondent and not the 3rd defendant hence the cause of action is as against the 1st defendant. Being that there are no reliefs sought by the plaintiff as against the 3rd Defendant and that the court in order to effectively adjudicate and settle all the questions touching on the transfer of suit property, to the 1st defendant, it would not need the participation of the 3rd defendant as the property had already been sold by the rightful owner to the 1st defendant and consideration was paid. In the case the plaintiff succeeds on her suit, title will pass back to the estate of the deceased and the 1st defendant has the option of seeking for compensation from the person they paid monies to. **Final disposition** In view of the foregoing discourse, I make the following orders; 1. The Notice of Motion application dated 30th September 2025 is without merit and is hereby dismissed with costs to the 1st Defendant. 2. The Notice of Motion application dated 21st October 2025 is merited and is hereby allowed with no order as to costs. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** virtually at **NAIROBI** on this **15th** day of **May 2026.** **MOHAMMED N. KULLOW** **JUDGE** **Ruling delivered in the presence of: -** **N/A** for the Applicant **Mr. Kinyua** for 1st Defendant **Ms. Karbola for Wanjiru** for 2nd Defendant **Mr. Ndambuki** for 3rd Defendant **Ms. Wambui** for 4th Defendant **Mr. Mureithi** for the Interested Party **Philomena W .** Court Assistant