[2021] KEELC 575 (KLR)
The court found that there was no relief sought against the 6th Defendant and the Plaintiff conceded that the plaint did not disclose any reasonable cause of action against it. The arguments by the 1st to 5th Defendants that the 6th Defendant should remain in the suit to explain the charge over the suit property...
Source-derived case information.
- Citation
- [2021] KEELC 575 (KLR)
- Parties
- Plaintiff: Jambo Holdings Limited; Defendant: Double Clean Limited; Defendant: Daimer Enterprises Limited; Defendant: Ruora Investments Limited; Defendant: Marstons Enterprises Limited; Defendant: Nginyo Roadways Limited; Defendant: Guaranty Trust Bank (Kenya) Limited; Defendant: Chief Land Registrar
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 219 of 2015
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion to Strike Out Suit Against 6th Defendant
- Outcome
- Suit against the 6th Defendant struck out with costs to the 6th Defendant.
- Judges
- EO Obaga
- Legal Topics
- Joinder of Parties, Striking Out Pleadings, Reasonable Cause of Action, Land Charge Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jambo Holdings Limited
Plaintiff
Double Clean Limited
Defendant
Daimer Enterprises Limited
Defendant
Ruora Investments Limited
Defendant
Marstons Enterprises Limited
Defendant
Nginyo Roadways Limited
Defendant
Guaranty Trust Bank (Kenya) Limited
Defendant
Chief Land Registrar
Defendant
Procedural Posture
Civil Suit / Ruling on Notice of Motion to Strike Out Suit Against 6th Defendant
Legal Issues
- 1 Whether the plaint discloses any reasonable cause of action against the 6th Defendant.
- 2 Whether the 6th Defendant is a necessary party to the suit in the absence of any relief sought against it.
Ratio Decidendi
The court found that there was no relief sought against the 6th Defendant and the Plaintiff conceded that the plaint did not disclose any reasonable cause of action against it. The arguments by the 1st to 5th Defendants that the 6th Defendant should remain in the suit to explain the charge over the suit property were rejected, as such explanations could be provided by calling the 6th Defendant's representatives as witnesses if necessary. The court held that a party against whom no relief is sought and no cause of action is disclosed should not remain a defendant. Accordingly, the suit against the 6th Defendant was struck out with costs to the 6th Defendant.
Court Disposition
Suit against the 6th Defendant struck out with costs to the 6th Defendant.
Orders
- The suit against Guaranty Trust Bank (Kenya) Limited (6th Defendant) is struck out.
- Costs awarded to the 6th Defendant.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT AT NAIROBI
MILIMANI LAW COURTS
ELC CASE NO. 219 OF 2015
JAMBO HOLDINGS LIMITED.......................................................... PLAINTIFF
=VERSUS=
DOUBLE CLEAN LIMITED....................................................1ST DEFENDANT
DAIMER ENTERPRISES LIMITED......................................2ND DEFENDANT
RUORA INVESTMENTS LIMITED......................................3RD DEFENDANT
MARSTONS ENTERPRISES LIMITED...............................4TH DEFENDANT
NGINYO ROADWAYS LIMITED.........................................5TH DEFENDANT
GUARANTY TRUST BANK (KENYA) LIMITED..............6TH DEFENDANT
CHIEF LAND REGISTRAR.................................................7TH DEFENDANT
RULING
1. The 6th Defendant/Applicant filed a Notice of Motion dated 22nd October 2020 in which it seeks that the suit against it be truck out with costs on the ground that the plaint does not disclose any reasonable cause of action against it; that there is no relief sought against it; that it is an unnecessary party to the suit and that its continued involvement in this suit will not aid the court in determining the suit herein.
2. The Plaintiff/Respondent indicated to court that it was not opposed to the application by the Applicant. It is only the 1st to 5th Defendants/Respondents who opposed the Applicant’s application through grounds of opposition dated 22nd March 2021. The 1st to 5th Respondents contend that there is no need for a relief against a party for it to remain a defendant; that the Applicant should remain in the suit so that it can explain how the suit property was charged to it while the Respondents had title to the same and that the application is brought in bad faith as it has been brought after five years from the date the suit was filed.
3. The parties agreed to dispose the application by way of written submissions. The Applicant filed its submissions dated 1st April 2021. The 1st and 5th Respondents filed their submissions dated 8th July 2021. I have considered the Applicant’s application as well as the opposition to the same by the 1st to 5th Respondents. I have also considered the submissions by the parties herein. The only issue for determination is whether the plaint discloses any reasonable cause against the Applicant. As I said before in this ruling, the Plaintiff which filed this suit against the Applicant is not opposed to the application. In other words, the Plaintiff concedes that the plaint does not disclose any reasonable cause against the Applicant.
4. Order 1 Rule 3 of the Civil Procedure Rules provides as follows:
“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”.
5. There is no relief which is being sought against the Applicant. The 1st to 5th Respondents too concede that indeed there is no relief which is being sought against the Applicant. They only argue that the Applicant should remain in the suit so that it can explain how the suit property was charged to it yet the 1st to 5th Respondents had title to the same. In my view, this explanation can be made by the Applicant’s representative being called as witnesses. The Applicant does not have to be a party when the person who sued it does not want it to remain as a defendant. It is in this regard that I agree with the decision of my brother Justice Eboso in the case of Alumark Investments Limited Vs Tom Otieno Onyango & 4 Others.
6. There is absolutely no cause of action against the Applicant. I allow the Applicant’s application with the result that the suit against it is hereby struck out with costs to the Applicant.
It is so ordered.
DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 18TH DAY OF NOVEMBER 2021
E.O.OBAGA
JUDGE
In the Virtual Presence of :-
Ms Murimi for Mutea for 6th Defendant/Applicant
Mr Nyang’au for 1st to 5th Respondents
Mr Kaula for Mr Mwangi for Plaintiff
Court Assistant: Mercy
E.O. OBAGA
JUDGE