https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/488

 REPUBLIC OF KENYA IN THE MAGISTRATE COURT OF KENYA AT MURANGA COUNTY COURT NAME: MURANGA MAGISTRATE COURT CASE NUMBER: MCELC/E014/2026 ESTHER WAMBUI KANG'ETHE AND ISABELLA WANJIRU THUO AND 2 OTHERS VS KIMWERE JOSPHAT & CO ADVOCATES RULING # THE APPLICATION 1. The plaintiffs/applicants herein filed an application dated 12 th February 2026 seeking the following orders against the defendants/respondents; 1. Spent 2. THAT the defendants be ordered to remove the caution registered against plot number Loc. 11/Maragi/1193/25; 3. The defendants be ordered to pay the plaintiffs/applicants general damages; 4. THAT the costs of this application be borne by the defendants/respondents. 2. In support of her application, the 1st applicant averred that she was a legal beneficiary of plot number Loc. 11/Maragi/1193/25 (herein “the subject plot”). She deposed that had conducted an official search in the process of transferring the said plot into the names of the legal beneficiaries thereto, when she found out that the 1st respondent had registered a caution against the plot. She had approached the 1st respondent to remove the same but he had declined. She therefore urged the court to allow her application and have the said caution removed to enable the transfer of the same. # THE 1st RESPONDENT’S OPPOSITION 1. The 1st respondent filed grounds of opposition to the application asserting that it was an abuse of court process as it sought to determine the suit prematurely. The 1st respondent pointed out that the prayers sought in the application were the same prayers sought in the plaint and if granted, there would be no issue left for determination. It was also the respondent’s position that the application was an affront to the constitution principle of fair hearing. 2. The 1 st respondent also raised a preliminary objection to the suit in his statement of defence dated 4th May 2026 asserting that there was no reasonable cause of action against him. He averred that he was instructed by Wamuhu Kamau’s family and was acting on their behalf in Succession Cause No. 47 of 1988. # THE 2ND RESPONDENT’S APPLICATION 1. For its part, the 2nd respondent filed an application dated 4th May 2026 urging the court to dismiss the suit against the 2nd respondent with costs for not disclosing a reasonable cause of action in law. The 2nd respondent’s principal legal officer, Elizabeth Kimemia, swore an affidavit in support of the application on even date. She reiterated that the plaint did not disclose any reasonable cause of action against the 2nd defendant as it did not plead any act, omission or legal duty attributable to the 2nd defendant. It was also averred that no nexus had been established between the 2nd defendant, the suit property or the alleged caution. Further that the reliefs sought in the plaint were not enforceable against the 2nd defendant and that the continued inclusion of the 2nd defendant in these proceedings was unnecessary, prejudicial and an abuse of court process. 2. The foregoing applications and grounds of opposition were canvassed by way of submissions, which this court has duly considered. # ISSUES 1. The issues arising from the foregoing depositions by the parties are; 1. Whether the suit against the respondents ought to be struck out; 2. Whether the application seeks to determine the suit prematurely; and if not; 3. Whether the respondents ought to be ordered to remove the caution lodged against the subject plot and be ordered to pay general damages and costs. # ANALYSIS AND DETERMINATION **Whether the suit against the respondents ought to be struck out** 1. The 1 st and 2 nd respondents have urged this court to strike out the plaintiffs’ suit against them in their pleadings and application respectively. The 1st respondent averred that he was merely acting for a client and that there is no reasonable cause of action against him whereas the 2nd respondent, argued that no nexus had been demonstrated to link it to the subject plot. The 2nd respondent also argued that the orders sought by the plaintiffs/Applicants are not enforceable against it and its inclusion in the matter is unnecessary. 2. In the case of [***Pravin Bowry v John Ward & another [2015] KECA 215 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/215/eng%402015-11-13) the Court of Appeal cited the decision of the Ugandan Supreme Court in ***Deported Asians Property Custodian Board v. Jaffer Brothers Limited (1999) I EA 55 (SCU)*** where the apex court held as follows on the joinder of parties to a suit; *“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 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. The Court of Appeal in the foregoing decision also quoted an excerpt from ***Sarkar’s Code of Civil Procedure (11th Ed. Reprint, 2011, Vol. 1 P. 887)***, where the authors remarked as follows on joinder of parties to a suit; *“The section should be interpreted liberally and widely and should not be restricted merely to the parties involved in the suit, but all persons necessary for a complete adjudication should be made parties.”* 1. Under **Order 1**, **Rule 10 (2)** which is the subject of the above discourse, the court may order that the name of any party improperly joined to a suit be struck out. As held in ***Pravin Bowry v John Ward (supra)*** a court is required to consider, among other things, whether a party’s presence in the suit is necessary to enable the court fully adjudicate and settle all questions involved in the matter in determining an application to strike out such a party from a suit. The court must also bear in mind that the joinder of a party serves to prevent a multiplicity of proceedings by facilitating the comprehensive and conclusive determination of all matters in dispute within a single suit. 1. This court notes that the claim against the respondents is for removal of a caution lodged against the subject plot. In support of their claim, the plaintiffs annexed a letter written by the 2nd respondent’s Municipal Manager on 23rd June 2025 where the said manager indicated that the 2nd respondent held records for the subject plot. The 2nd respondent’s manager explained that the subject plot had been allocated to Waithaka Njambuya in the early 1950s and his son Njambuya Waithaka invited one Ignatius K. Kaihu to assist him develop the plot. Based on the records held by the 2nd respondent, the subject plot was subdivided into two portions. One portion was registered in the name of Ignatius Kamau Kaihu and the other in the name of Waithaka Njambuya. The 2nd respondent informed the applicants that a caution had been placed on the subject plot by the 1st respondent as the family of Waithaka Njambuya claimed that they had inherited the entire plot and did not recognize the claim by the administrators of the estate of Ignatius Kamau Kaihu who had a confirmed grant for their portion of the subject plot. 2. The 1 st respondent has conceded that he was instructed to act for his clients in succession proceedings relating to the subject plot. 3. In their impugned plaint, the applicants have sought *inter alia*, for orders compelling the defendants to remove the caution registered against the subject plot. The correspondence by the 2nd respondent referred to above states that the 1st respondent lodged the caution on the subject parcel of land. The said letter also demonstrates that the 2nd respondent is the holder of the official records for the subject plot. It follows that the respondents herein are necessary parties in the complete adjudication of the questions raised in the instant suit. The respondents will have an opportunity to defend the suit against them and will not be prejudiced in any manner that cannot be compensated by way of damages. Consequently, this court dismisses the preliminary objection by the 1st respondent and the application to strike out by the 2nd respondent seeking to be struck out from these proceedings. # Whether the application seeks to determine the suit prematurely; and if not; 1. Turning to the 1st respondent’s opposition to the application on the basis that the orders sought in the application will determine the suit prematurely, this court finds that the applicants have in deed sought the removal of the caution registered against the subject plot, general damages and costs in their plaint as well as their application dated 12th February 2026. The applicants have not sought any orders to preserve the subject matter pending the determination of the suit as envisaged under **Order 40**, **Rule 1** of the **Civil Procedure Rules**. 1. In the case of [***Joseph Kibowen Chemjor v William C Kisera [2013] KEELC 140 (KLR)***](https://kenyalaw.org/akn/ke/judgment/keelc/2013/140/eng%402013-03-12) the court held that an action for removal of a caution should be commenced by way of a plaint. It further held that the plaintiff bears the burden of proving, on a balance of probabilities, that the defendant has no right to place a caution on their title and that caution ought to be removed. The orders sought by the plaintiffs in this case cannot be granted at interlocutory stage as the suit has not been heard on merit. The parties must first adduce evidence in support of their respective claims, which this court will evaluate before determining whether the caution ought to be removed. 2. The third issue identified for determination which is, whether respondents ought to be ordered to remove the caution lodged against the subject plot and be ordered to pay general damages and costs, can therefore not be resolved at this stage. Consequently, this court finds no merit in the application dated 12th February 2026. # CONCLUSION 1. In the end this court the application 12 th February 2026, the 1 st respondent’s preliminary objection and the 2nd respondent’s application dated 4th May 2026. Costs shall be in the cause. # DATED, SIGNED AND DELIVERED AT MURANG’A THIS 5TH DAY OF AUGUST 2026. **HON. GRACE WAITHĨRA SENIOR RESIDENT MAGISTRATE** **RULING READ ON THE VIRTUAL PLATFORM AT 11:35 A.M. IN THE PRESENCE OF;** **C/A MUYA** **MR. WANDAI KARUGA FOR THE PLAINTIFFS/APPLICANTS N/A FOR THE 1ST DEFENDANT/RESPONDENT** **N/A FOR THE 2ND DEFENDANT/RESPONDENT** SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. GRACE WAITHIRA** Muranga Magistrate Court Magistrate Court Date: 2026-08-06 19:37:00