https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3774

Kamande v Karanja & 4 others (Environment and Land Case E018 of 2024) [2026] KEELC 3774 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEELC 3774 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Case E018 of 2024 JA Mogeni, J June 17, 2026 Between Loise Wanjiku Kamande Plaintiff and Charity Wanjiru Karanja 1st Defendant Wallace Njoroge Karanja 2nd Defendant Theresia Njeri Kimani 3rd Defendant Alice Wanjiru Mung 4th Defendant David Njoroge Kamau 5th Defendant Ruling 1.This Ruling arises from a Chamber Summons brought under Order 6 Rule 13 and Order 51 of the Civil Procedure Rules 2010 by David Njoroge Kamau, the 5th Defendant/Applicant, seeking to be struck out from proceedings in which the Plaintiff/Respondent claims, by way of an Originating Summons, a declaration that she has become the legal owner of 2 acres out of land parcel Kiambaa/Waguthu/108 by virtue of a constructive trust. The core grievance of the Applicant is that he has been wrongly sued in the capacity of Administrator of the Estate of the late Simon Kamau Magari, a status he categorically denies. The Respondent, on her part, contends that the Applicant is a son, beneficiary, and occupant of the suit property and that his continued presence is indispensable for the complete resolution of the dispute. 2.The Application is based on the grounds enumerated here-below and on the annexed Supporting Affidavit of DAVID NJOROGE KAMAU, being:i.Thatthe 5th Defendant/Applicant is a stranger to the suit.ii.Thatthe Plaintiff has sued seeking for orders that she be declared to have become the legal owner of 2 acres out of Kiambaa/Waguthu/108 situated in Kiambu County by virtue of constructive trust.iii.Thatthe suit property Kiambaa/Waguthu/108 is not registered in the names of the 5th Defendant/Applicant.iv.Thatthe 5th Defendant/Applicant is sued in his capacity as the administrator of the estate of Simon Kamau Magari (Deceased), which he is not.v.Thatthe 5th Defendant/Applicant has therefore no legal capacity to litigate on the suit property.vi.Thatthe 5th Defendant/Applicant is apprehensive that if the Orders sought herein are not granted, the Plaintiff/Respondent will get Orders against him that he will not have powers to execute. 3.In the Supporting Affidavit sworn on even date, the Deponent, David Njoroge Kamau, avers that he has been improperly joined as the 5th Defendant in the suit. He deposes that the Plaintiff has sued him in the purported capacity of Administrator of the Estate of Simon Kamau Magari (Deceased), a status he categorically denies holding. 4.Consequently, the Deponent contends that he is a stranger to the suit and lacks the requisite locus standi or legal capacity to litigate matters concerning the suit property. He expresses a well-founded apprehension that should the suit proceed against him, the Court may issue orders that are incapable of execution against his person. Furthermore, he avers that his continued presence in the suit is a procedural irregularity that prejudices the rightful Defendants by denying them the opportunity to comprehensively defend their interests. He therefore prays that the Court finds his joinder to be a misjoinder and strikes him out from the proceedings. 5.The Application is opposed by the Plaintiff/Respondent vide a Replying Affidavit sworn on 20/07/2025 depones that the 5th Defendant’s application for striking out is fundamentally misconceived and an attempt to overreach the Court. She categorically denies that the Applicant is a stranger to the suit, averring that he is in actual occupation of a portion of the suit property, Title No. Kiambaa/Waguthu/108, and thus any decree issued by this Honourable Court would directly affect his interests. 6.The Deponent further deposes that the Applicant is a son and beneficiary of the estate of the late Simon Kamau Magari, thereby vesting in him the status of a beneficial owner of the suit land. She reveals that on 2/03/ 2023, the Applicant was summoned by the Chief of Kiambaa Location as a family representative to deliberate on the administration of the estate, a fact she supports by attaching Annexure "LWK-2" which is a copy of the Chief’s Summons. 7.The Respondent contends that the Applicant and his siblings have deliberately failed to petition for Letters of Administration to frustrate her claim, and maintains that his joinder is necessary for the effectual and complete adjudication of the dispute. Consequently, she asserts that the Applicant stands to suffer no prejudice by participating in the proceedings and prays that the application be dismissed with costs to ensure the ends of justice are met. 8.The said chamber summons was canvassed by way of written submissions. The 5th Defendant/Applicant filed their submissions dated 8/10/2025 and the Plaintiff/Respondent filed theirs dated 7/10/2025 9.In the written submissions in support of the application dated 5/12/2024, the 5th Defendant/Applicant contends that his joinder to the suit is procedurally defective and founded on a factual misdirection. He argues that the Plaintiff/Respondent’s Originating Summons improperly designates him as the administrator of the Estate of Simon Kamau Magari (Deceased), a position he states he has never held and currently does not occupy. 10.The Applicant submits that because the core of the dispute involves the determination of proprietary rights and the issuance of title for Land Parcel No. Kiambaa/Waguthu/108, it is a matter of significant legal weight that must be litigated by parties with the requisite legal standing. He maintains that he lacks the capacity to represent or speak for the estate of the deceased in matters of land ownership. 11.To anchor this position, the Applicant cites Section 82 of the Law of Succession Act, which vests the power to enforce or defend causes of action involving a deceased person's estate exclusively in legally appointed personal representatives, subject to the limitations of their grant. It is the Applicant’s submission that in the absence of such a legal appointment, he is devoid of the statutory powers necessary to defend the interests of the Estate of Simon Kamau Magari. He further asserts that it is only just for the suit to be maintained against the rightful Defendants to allow for a proper defense. Consequently, the Applicant moves the Court to find that he has been improperly enjoined and prays that his name be struck out from the suit. 12.The Plaintiff/Respondent’s written submissions are filed in opposition to the 5th Defendant’s application dated 5/12/2024, which seeks to strike out the Applicant from the proceedings on the grounds of misjoinder and lack of capacity. The Respondent frames the central issue for determination as whether the Applicant has demonstrated sufficient grounds to warrant his removal from the suit, contending that his continued participation is a procedural necessity and causes him no prejudice. 13.The Respondent relies on the discretionary powers of the Court under Order 1 Rule 10(2) of the Civil Procedure Rules, asserting that the paramount consideration is whether a party’s presence is indispensable for the Court to effectually and completely adjudicate upon and settle all questions in the suit. It is submitted that the Applicant is far from a stranger to the dispute; rather, as a son and beneficiary of the late Simon Kamau Magari, he maintains both an actual and beneficial interest in the suit property, Kiambaa/Waguthu/108, where he and his family currently reside. The Respondent further argues that the Applicant's denial of his status as an administrator is not a fatal bar to his joinder, as he remains a beneficial owner in occupation. 14.To bolster this position, the Respondent cites the case of Amoth & 2 others v Duncan & 10 others (Environment and Land Appeal E002 of 2023) [2024] KEELC 1340 (KLR). This authority, which approves the principles set out in the Supreme Court of Uganda decision in Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55 (SCU) and Julius Meme v Republic & another [2004] eKLR, underscores that joinder is proper where it ensures the complete settlement of all questions, protects the rights of parties who would be adversely affected in law, and prevents a multiplicity of suits. 15.In conclusion the Respondent submits that striking out the Applicant would offend the overriding objectives of the Civil Procedure Act Sections 1A and 1B, which mandate the just, expeditious, and proportionate resolution of disputes. It is urged that the interests of natural justice require the inclusion of an occupant whose rights are directly at stake. Consequently, the Respondent prays that the Court finds the 5th Defendant a necessary party and dismisses the application with costs. Analysis and Determination 16.This Ruling arises from a Chamber Summons filed and dated 5/12/2024, brought by David Njoroge Kamau, the 5th Defendant/Applicant, who seeks to be struck out from proceedings in which the Plaintiff/Respondent, by way of an Originating Summons, claims a declaration that she has become the legal owner of 2 acres out of land parcel Kiambaa/Waguthu/108 situated in Kiambu County by virtue of a constructive trust. The Applicant's central grievance is that he has been wrongly sued in the capacity of Administrator of the Estate of the late Simon Kamau Magari (Deceased), a status he categorically denies holding. He contends that because the suit property is not registered in his name, and because he holds no legal grant empowering him to represent the deceased's estate, he lacks both the locus standi and the legal capacity to meaningfully participate in the proceedings. 17.He further apprehends that if the application is not granted, orders may be issued against him which he will have no power to execute. The Respondent, for her part, opposes the application with equal vigour, averring that the Applicant is a son, beneficiary, and occupant of the suit property and that his continued presence in the proceedings is indispensable for the complete and effectual resolution of the dispute. 18.This application raises two issues that are distinct in form but deeply intertwined in substance.i.Whether a party can be properly joined to a suit in a representative capacity he does not legally hold.ii.The second, and more consequential question, is whether that same party retains the status of a necessary party by virtue of his personal connection to the suit property as a beneficial occupant, notwithstanding the error in the description of his capacity. 19.The resolution of both questions requires a careful examination of the law governing joinder and misjoinder, the principles applicable to the striking out of parties, the statutory framework under the Law of Succession Act, and the overriding objective of the Civil Procedure Act as reflected in Sections 1A and 1B thereof. 20.Under the Kenyan Civil Procedure Rules, Order 6 Rule 13 and Order 51 do not directly address the striking out of parties. Instead, they govern the striking out of pleadings and this includes a plaint or defense and the procedural mechanism for bringing these and other Court applications. This is the law under which the Chamber Summons was brought before this Court by the Applicant. That notwithstanding I will focus on the substantive application without relying so much on the form in which the application finds itself before me. 21.Now for the record and for the parties to note, Order 1 Rule 10(2) of the Civil Procedure Rules 2010, provides that 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, 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. The provision thus vests in the Court a wide and flexible discretion a discretion that cuts in both directions. 22.It empowers the Court to remove parties who have been improperly joined, but equally to retain or add parties whose presence is necessary for a complete resolution of the controversy. What binds both powers together is the paramount consideration: the effectual and complete adjudication of all questions involved in the suit. 23.This discretion is contextualised by the foundational rule against the defeat of suits by procedural technicality. It is a foundational principle of Kenyan civil procedure that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and that the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. This principle reinforces the legislative philosophy that technical defects in party composition or party description should not, of themselves, bring meritorious litigation to a halt. What matters ultimately is not the precision of the designation but whether, at its core, the party's presence is either unnecessary or indispensable to a just outcome. 24.The distinction between a necessary party and a proper party was crystallised in Kenyan jurisprudence by Nambuye J (as she then was) in the seminal decision of Joseph Njau Kingori v Robert Maina Chege & 3 Others [2002] KEHC 1192 (KLR). In that case the Court stated the guiding principles for joinder with clarity that has endured:“When the above principles are applied to the facts of these applications it is clear that the guiding principles when an intending party is to be joined are as follows:(1)He must be a necessary party;(2)He must be a proper party;(3)In the case of the Defendant there must be a relief flowing 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 to adjudicate upon and settle all questions involved in the suit." 25.These principles remain the fundamental rule for questions of joinder and striking out in Kenyan civil procedure, and they apply with full force to the present application. 26.In the Departed Asians Property Custodian Board v. Jaffer Brothers Ltd, Supreme Court Civil Appeal No. 9 of 1998 a decision that has been consistently received and applied in Kenya, drew a crucial conceptual distinction that is directly applicable here. It was held in that case 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." 27.The Court went further to articulate the policy rationale underpinning the joinder rules, observing that:“The objective of these Rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, or inconvenience and to avoid multiplicity of proceedings. Thus, any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined." 28.In this landmark Ruling, the Supreme Court of Uganda clarified the legal threshold for the joinder of parties under the Civil Procedure Rules. The Court emphasized that a person can be joined to a suit even if no direct cause of action exists against them, provided their presence is essential for the Court to effectively and completely resolve all legal questions involved in the matter 29.This distinction goes to the very heart of the present application: the Applicant insists he was joined in the wrong capacity, while the Respondent asserts that in whatever capacity he stands, his presence is indispensable for a complete adjudication. 30.The Kenyan Courts have consistently given expression to these principles in the land law context. In the case of Mageu & 2 Others v Smep Microfinance Bank & 3 Others (Environment & Land Case E003 of 2022) [2024] KEELC 1132 (KLR), the Environment and Land Court, faced with a striking-out application not unlike the present one, held that:“The presence of the Applicant was necessary for the determination of the matter in dispute and to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit,"and affirmed that“It is also clear under Order 1 Rule 9 of the Civil Procedure Rules that a suit cannot be defeated by misjoinder or non-joinder of parties." 31.The consistent thread in these authorities is that the Court's overriding concern is the effectual determination of the dispute, and any procedural rule including the power to strike out must be read and exercised in service of that purpose. 32.On the second question which is on capacity, the Applicant's primary contention rests on the claim that he is not and has never been the administrator of the Estate of Simon Kamau Magari (Deceased), and that by virtue of Section 82 of the Law of Succession Act, only a legally appointed personal representative has the statutory power to enforce or defend causes of action involving a deceased person's estate. 33.This is a sound legal proposition insofar as it goes, and it deserves serious engagement. Section 82 of the Law of Succession Act is unambiguous: the power to sue or be sued on behalf of a deceased's estate vests in the personal representative as circumscribed by the terms of the grant. A person who holds no grant cannot represent an estate and cannot give valid undertakings on its behalf, nor can he be bound in a representative capacity by orders of the Court directed at an estate he has no legal authority to administer. 34.Decisions made by apex Court which am bound to depart from but judiciously apply in circumstances where they are Applicant have repeatedly affirmed the seriousness of locus standi in the context of deceased estates. As a matter of fact in the case of Pravinchandra Jamnadas Kakad v Estate of Lucas Oluoch Mumia & 2 others [2022] eKLR - Environment and Land Case 236 of 2020, I stated on this issue of locus thus:“locus standi relates mainly to the legal capacity of a party. The impact of a party in a suit without locus standi can be equated to that of a Court acting without jurisdiction. Since it all amounts to null and void proceedings. It is also worth noting that the issue of locus standi becomes such a serious one where the matter involves the estate of a deceased person since in most cases the estate involves several other beneficiaries or interested parties." 35.It follows from this that any order made against the Applicant in his purported capacity as administrator of the estate would be incapable of execution, since he holds no such position and commands no legal authority over the estate's assets. The Applicant is therefore correct that he cannot be sued as, or held accountable in the role of, an administrator he has never been appointed to serve. 36.This analysis is, however, only the first half of the inquiry. It addresses the validity of the designation, not the validity of the joinder as a whole. As will be shown below, an error in the description of a party's capacity does not inevitably lead to that party's exclusion from the proceedings altogether, particularly where, independently of the erroneous designation, the party has a personal and substantial interest in the subject matter of the suit. 37.The central issue in this application lies in a distinction the law draws with precision but which the pleadings have obscured. The Applicant has been joined in a representative capacity that of administrator which he does not lawfully hold. That much is uncontested, and to that extent his complaint is justified. The live and decisive question, however, is whether this error in designation is fatal to his joinder altogether, or whether his personal interest in the suit property provides an independent and sufficient basis for his continued presence as a Defendant, not in a representative capacity, but in his own right as a beneficial occupant and heir. 38.The Respondent has deposed, through her Replying Affidavit sworn on 20/07/2025, that the Applicant is a son and beneficiary of the late Simon Kamau Magari, that he is in actual occupation of a portion of the suit property Kiambaa/Waguthu/108, and that he was summoned by the Chief of Kiambaa Location as a family representative in deliberations concerning the administration of the estate a fact supported by the attached Chief's Summons marked as Annexure "LWK-2." She further contends, and this is of significant legal weight, that the Applicant and his siblings have deliberately failed to petition for Letters of Administration, thereby frustrating her constructive trust claim. This is a significant factual matrix that cannot be brushed aside in the assessment of the application. 39.A claim for constructive trust over land necessarily implicates any person in actual occupation of the affected property and any person with a beneficial interest in the title from which the trust is said to arise. If the Plaintiff is to obtain a declaration that she has become the equitable owner of 2 acres of the suit property, and the Applicant is in actual possession of a portion of that land, any order of the Court that seeks to give effect to such a declaration would directly affect his occupation and, by extension, his beneficial interest. 40.It is impossible to imagine how such an order could be made effective without the Applicant being before the Court. His occupation is not merely incidental; it is directly implicated by the very reliefs sought in the Originating Summons. Applying the fourth principle from Joseph Njau Kingori v Robert Maina Chege & 3 others [2002] 2 KLR 243 (also commonly cited neutrally as [2002] KEHC 1192), that“The ultimate order or decree cannot be enforced without his presence in the matter" 41.Thus the Applicant plainly qualifies as a necessary party. Furthermore, the allegation that the family has deliberately refrained from obtaining a grant of administration in order to frustrate the proceedings is, if established, a matter of profound concern. As has been recognised in the line of authorities governing estate disputes, claims to ownership of alleged estate property as between the estate and a third party should be resolved through the civil process in a civil suit properly brought before a Civil Court. If the estate of Simon Kamau Magari remains unadministered, and the beneficiaries occupy the property while resisting the Plaintiff's constructive trust claim from a position of legal opacity, justice would be ill-served by permitting those beneficiaries to escape the scrutiny of the Court by invoking the very state of affairs they themselves have created. 42.Therefore, beyond the technical rules on joinder, Sections 1A and 1B of the Civil Procedure Act impose a positive duty on the Court to facilitate the just, expeditious, proportionate, and affordable resolution of civil disputes. The Court must actively manage proceedings in a manner that ensures that litigation achieves its purpose, which is the determination of the rights of the parties in a manner that is final, effective, and enforceable. The Respondent correctly invokes this principle. If the Applicant were struck out purely on the basis of the error in his designation, and the matter proceeded to judgment without him, any decree purporting to affect the suit property and direct its transfer or disposition would be unenforceable against the very occupant whose presence on the land is the reason the dispute exists. This would either occasion a fresh multiplicity of suits the precise evil that the joinder rules are designed to prevent or leave the Respondent with a hollow judgment that the Court is powerless to enforce. Neither outcome is consistent with the overriding objective, and neither is acceptable. As we all know the Court never acts in vain. 43.It is also a settled principle of civil procedure that where a party has been joined in the wrong capacity but retains a personal and independent interest in the proceedings, the appropriate remedy is not outright striking out but correction of the designation by way of amendment. The power under Order 1 Rule 10(2), as has been noted, is exercisable on such terms as may appear to the Court to be just. Those terms may include directing that the party remain on the record under a corrected description. The error in this case lies not in the inclusion of the Applicant as a party but in the label attached to him. 44.He was joined as administrator; he ought to have been joined as a son, beneficiary, and occupant of the deceased's estate, defending the proceedings in his personal capacity. The distinction is significant in legal theory but does not, on the facts as disclosed, warrant his removal from the suit. The Court's discretion is best exercised by retaining the Applicant and directing that the pleadings be amended to accurately reflect the basis of his joinder. 45.The deliberate failure by the Applicant and his siblings to petition for Letters of Administration, as alleged by the Respondent, is a matter that the Court notes with concern. Should the estate remain unadministered and the proceedings thereby frustrated, the Court retains the power to take appropriate steps, including directing that a suitable person be appointed to represent the estate for the purposes of these proceedings or, if necessary, that the matter be referred to the Public Trustee, in order to ensure that the suit is brought to a just and final determination. 46.Having analysed the law, the undisputed and disputed facts on the record, the affidavits and submissions of both parties, and the broad discretion vested in the Court by Order 1 Rule 10(2) of the Civil Procedure Rules 2010, the Court arrives at the following findings and conclusions, as stated herein.i.The Applicant is a necessary party within the meaning of Order 1 Rule 10(2) of the Civil Procedure Rules 2010.ii.The application for striking out is accordingly dismissed.iii.The Originating Summons and subsequent pleadings to be amended to reflect the Applicant's correct status as a Defendant or administrator once the necessary grant is obtained.iv.The amendment should be effected and necessary parties served within 30 days of this Ruling.v.Costs of this application shall be in the cause.vi.PTC on 30/06/2026Orders Accordingly. DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 17TH DAY OF JUNE, 2026.………………………MOGENI J*8JUDGE**In the presence of:Mr. Wambugu for the PlaintiffMs. Kamuyu for the 1st and 2nd Defendants3rd and 4th Defendants – AbsentMr. Maina for the 5th DefendantMs. Lillian - Court Assistant………………………MOGENI JJUDGE