Kiruti & another v Gitau & 4 others (Environment and Land Case 70 of 2022) [2026] KEELC 2929 (KLR) (13 May 2026) (Ruling)

Kiruti & another v Gitau & 4 others (Environment and Land Case 70 of 2022) [2026] KEELC 2929 (KLR) (13 May 2026) (Ruling) Neutral citation: [2026] KEELC 2929 (KLR) Republic of Kenya In the Environment and Land Court at Kajiado Environment and Land Case 70 of 2022 MD Mwangi, J May 13, 2026 Between Nairuku Ene Mutarakwa Kiruti 1st Plaintiff Robert Moinket Mutarakwa 2nd Plaintiff and Francis Gitau 1st Defendant Juliana Wanyuru Wakori 2nd Defendant The Land Registrar Kajiado 3rd Defendant The Hon. Attorney General 4th Defendant Equity Bank (Kenya) Limited 5th Defendant Ruling Introduction Ruling ELC/e070/2022 1.The matter for determination by this Court is the 5th Defendant/Applicant’s Notice of Motion dated 4th December 2025. The application is brought pursuant to the provisions of Order 2 Rule 15 and Order 51 Rule 1 of the Civil Procedure Rules, alongside Sections 1A, 1B, and 3A of the Civil Procedure Act. 2.Through the subject application, Equity Bank (Kenya) Limited, the 5th Defendant/Applicant, principally seeks an order to be struck off these proceedings on the ground that the suit discloses no reasonable cause of action against it. Further, the Applicant seeks the costs of the application and of the suit as against the 1st and 2nd Plaintiffs/Respondents. 3.The Application is premised on the grounds on the face of the Motion and is further buttressed by the Supporting Affidavit of Samuel N. Wamaitha, the Assistant Manager in charge of Legal Services for the 5th Defendant/Applicant, filed on 8th December 2025. The core substratum of the Applicant's case is that its involvement with the suit properties was strictly limited to its role as a Chargee, securing financial facilities advanced to the 2nd Defendant. The Applicant contends that these facilities have since been repaid in full, leading to a complete discharge of the charge and the release of the original title documents. Consequently, the Applicant maintains that it holds no existing proprietary, beneficial, or equitable interest in the subject parcels and categorically denies any complicity, participation, or authorization of the alleged fraudulent dealings detailed in the Plaintiffs' Further Amended Plaint. 4.The application is vehemently opposed by the 1st and 2nd Plaintiffs/Respondents, Nairuku Ene Mutarakwa Kiruti and Robert Moinket Mutarakwa, who bring this suit in their capacities as the administratrix and administrator of the Estate of the late Mutarakwa Kiruti Lepaso. 5.In opposing the Motion, the Respondents filed Grounds of Opposition dated 20th February 2026. The Respondents aver that the 5th Defendant's application is fatally defective for want of material particularity. They maintain that the pleadings having closed, there is a proper joinder of issues for determination, and the Further Amended Plaint succinctly elucidates substantial allegations of statutory breach and negligence against the Applicant. 6.In tandem with the Grounds of Opposition, the Respondents rely on a Replying Affidavit sworn by the 2nd Plaintiff/Respondent, Robert Moinket Mutarakwa, on 20th February 2026. The Deponent asserts that the Further Amended Plaint appropriately introduces the 5th Defendant to the suit with specific particulars outlining its breach of statutory duties and negligence in dealing with the suit properties, inclusive of actions pertaining to any auction or sale. The Respondents further point out that the 5th Defendant has already complied with pre-trial directions by filing a Statement of Defence on 10th June 2025 and an accompanying Witness Statement, demonstrating that prominent issues have been raised that mandate a full trial. 7.The application was canvassed by way of written submissions in accordance with the directions by the court. Issues for Determination 8.The question before the court is whether the 5th Defendant is a necessary party to this suit, and concurrently, whether the Further Amended Plaint discloses a reasonable cause of action against it to warrant its continued participation in these proceedings. Analysis and Determination 9.The 5th Defendant/Applicant anchors its prayer to be struck from the record on the provisions of Order 1 Rule 10(2) and Order 2 Rule 15(1)(a) of the Civil Procedure Rules. The power to strike out pleadings for failing to raise a legitimate claim is prescribed under Order 2 Rule 15(1)(a) of the Civil Procedure Rules, which states verbatim:“(1)At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that— (a) it discloses no reasonable cause of action or defence in law..." 10.The jurisprudence governing the striking out of pleadings is well-settled in our jurisdiction. The power is discretionary, draconian in nature, and must be exercised with the utmost circumspection. It is a cardinal principle of our legal system that parties should be accorded the opportunity to have their disputes resolved on merit through a full trial. This position was decisively cemented by the Court of Appeal in the locus classicus case of D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] eKLR, where Madan JA illuminated the applicable threshold, stating verbatim:“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it." 11.The Applicant further invokes Order 1 Rule 10(2) of the Civil Procedure Rules regarding the misjoinder of parties. This provision provides the statutory threshold for the striking out and addition of parties, stating verbatim:“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, whether as plaintiff or defendant, 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." 12.The test for who constitutes a "necessary party" within the meaning of Order 1 Rule 10(2) has been the subject of extensive judicial pronouncement. A necessary party is one whose presence is indispensable for the court to effectually and completely adjudicate upon and settle all the questions involved in the suit. As persuasively articulated in the English authority of Amon v Raphael Tuck & Sons Ltd [1956] 1 All ER 273 (which has been widely adopted by Kenyan courts), a necessary party is one against whom a direct right to relief exists, or without whom an effective decree cannot be issued. 13.Applying these legal tenets to the factual matrix at hand, the 5th Defendant/Applicant premises its application on the assertion that its role was strictly that of a financier and chargee. It forcefully contends that because the loan facilities advanced to the 2nd Defendant were fully serviced—resulting in the discharge of the charges and the release of the original titles—it no longer holds any proprietary, legal, or equitable interest in the suit properties. Consequently, it argues it has been improperly joined. 14.However, this argument fails to appreciate the nature of the Plaintiffs/Respondents' claim as formulated in the Further Amended Plaint. The Respondents aver that the properties, which stem from the estate of the late Mutarakwa Kiruti Lepaso, were fraudulently and illegally transferred to the 1st and 2nd Defendants, who subsequently charged them to the 5th Defendant. The Respondents have specifically pleaded allegations of breach of statutory duty and negligence against the 5th Defendant regarding its handling of the suit properties during the subsistence of those charges. 15.The 5th Defendant's historical involvement with the titles forms an integral link in the chain of transactions challenged by the Plaintiffs. The allegations of negligence and statutory breach leveled against the Bank are substantive claims that attach to its past conduct; they are not automatically extinguished merely because the charges were subsequently discharged and the security released. The 5th Defendant's presence is therefore necessary to enable the Court to thoroughly interrogate the validity of the transactions that occurred while the properties were encumbered in its favor. 16.Whether the 5th Defendant actually breached its statutory duties, or whether its actions as a chargee were tainted by negligence that facilitated the alleged fraud, are intensely factual and evidentiary questions. They constitute triable issues that can only be resolved through the production of evidence, document production, and cross-examination during a full trial. The 5th Defendant's defense—that it acted innocently and has since discharged its interest—is a substantive defense to the main suit, not a valid ground for summarily striking out the suit at an interlocutory stage. 17.Consequently, I find that the Further Amended Plaint does indeed disclose a reasonable cause of action against the 5th Defendant/Applicant, successfully passing the threshold set out in D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another. The Applicant is not an improperly joined party; rather, its presence is a necessary component for this Court to unravel the complex web of land transactions and to arrive at a just, complete, and effectual determination of the dispute. 18.In the result, the Court makes the following Orders:a.The 5th Defendant/Applicant’s Notice of Motion dated 4th December 2025 be and is hereby dismissed in its entirety.b.The costs of this application are awarded to the 1st and 2nd Plaintiffs/Respondents.c.This matter shall proceed to trial for a full hearing on its merits as against all parties on record.Ordered accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 13TH DAY OF MAY, 2026.M.D. MWANGIJUDGEIn the virtual presence of:N/A by the PartiesCourt Assistant: AlexM.D. MWANGIJUDGE