Laibuni & 20 others v Kirima [Member County Assembly of Meru] & 4 others (Environment and Land Case E012 of 2026) [2026] KEELC 3577 (KLR) (4 June 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC E012 OF 2026** HARUN MUTUMA LAIBUNI & 20 OTHERS……………….…PLAINTIFFS VERSUS FREDRICK MUBICHI KIRIMA [MEMBER COUNTY ASSEMBLY OF MERU………….....1ST DEFENDANT THE COUNTY ASSEMBLY OF MERU ……………..……2ND DEFENDANT AGNES GAKII [THE CHIEF MURATHA NKARI LOCATION] ………………………………………..….…..3RD DEFENDANT THE HONOURABLE ATTORNEY GENERAL…….……..4TH DEFENDANT AND THE COUNTY GOVERNMENT OF MERU......................INTERESTED PARTY RULING 1. Before me is the Notice of Motion Application dated the 11.05.2026; brought pursuant to the provisions of **Order 1 Rule 10 [2]; and Order 2 Rule 15 of the Civil Procedure Rules, 2010;** and wherein the 2nd Defendant/Applicant *[hereinafter referred to as the Applicant]* has sought the following reliefs: 2. ***That the 2nd Defendant, County Assembly of Mere be struck out from the proceedings of ELC case No. E012 of 2026 for being improperly joined.*** 3. ***That the 2nd Defendant’s name be struck off from the applicants notice of motion, plaint and all pleadings in ELC Case No. E12 of 2026.*** 4. ***That costs be in the cause.*** 5. The Application is premised on the various grounds that have been highlighted in the body thereof. The grounds are: The 2nd Defendant/applicant has been joined in the subject proceedings; the joinder is informed by the alleged actions of the 1st Defendant; the 1st Defendant is not an authorized agent of the 2nd Defendant; the 2nd Defendant is not vicariously liable for any actions or omissions of the 1st Defendant; the suit before the court does not disclose any reasonable cause of action against the 2nd Defendant; the 2nd Defendant has been improperly joined; and the Plaintiffs are non-suited as against the 2nd Defendant. 6. The application is supported by the affidavit sworn on even date. The deponent of the supporting affidavit has reiterated the grounds contained in the body of the application. Furthermore, the deponent has asserted that the constitutional mandate of the 2nd Defendant is to legislate; and offer oversight over the County Government. In addition, it has been posited that the 2nd Defendant is neither a development implementer or executioner. 7. Flowing from the foregoing, it has been posited that the actions complained of do not touch on and or concern the 2nd Defendant. Moreover, it has been contended that the subject suit does not disclose any reasonable cause of action as against the 2nd Defendant or at all. To this end, the 2nd Defendant has posited that the suit against it, is misconceived; premature; and legally untenable. 8. The Plaintiffs/Respondents filed grounds of opposition and wherein same has canvassed various issues. The issues are: the 1st Defendant is an agent of the 2nd Defendant; the 2nd Defendant is vicariously liable for the actions, or omissions of the 1st Defendant; the 2nd Defendant is a necessary party; the 2nd Defendant has been properly joined; and the application before the court is devoid of merits. 9. The subject matter came up for directions on the 13.05.2026, whereupon the advocates for the parties sought to canvass and dispose of the application by way of written submissions. To this end, the court proceeded to and issued directions. The directions were: The applicant shall file and serve written submissions within 7 days; the Plaintiffs/Respondents shall file and serve written submissions within 7 days from the date of service; and the matter shall be mentioned on the return date to confirm compliance. 10. The Applicant filed written submissions and wherein same has highlighted two key issues. The issues are: the 2nd Defendant was not responsible for the actions complained of; and the 2nd Defendant has been improperly joined/sued in the matter. 11. The Plaintiffs filed written submissions dated the 15.05.2026 and wherein same have canvassed one key issue. The issue is: The 2nd Defendant is vicariously liable and has a close nexus with the 1st Defendant; and the 2nd Defendant has been properly joined. 12. The rest of the Defendants neither filed any opposition to the application nor written submissions. Moreover, the rest of the Defendant[s] had posited that same shall not be participating in the proceedings relative to the subject application. 13. Having reviewed the Notice of Motion Application [The Application] dated the 11.05.2026; the supporting affidavit thereto; the grounds of opposition; and upon consideration of the written submissions on record, I come to the conclusion that the determination of the subject application turns on one key issue. The issue is: Whether the subject suit raises any reasonable cause of action against the 2nd Defendant/applicant or otherwise. 14. The Plaintiffs herein have brought the subject suit *vide* the plaint dated the 16.03.2026 and wherein the Plaintiffs have contended that the 1st and 3rd Defendants convened a meeting on the 05.03.2026 and thereafter addressed a public gathering. In addition, it has been contended that the 1st and 3rd Defendant similarly, addressed another gathering on the 10.03.2026 and issued threats to the Plaintiffs that same shall be evicted from the suit properties. 15. Furthermore, it has also been posited that subsequently the various properties belonging to the Plaintiffs were marked with “X”. The actions culminating into the marking of the Plaintiffs’ properties with mark “X” is said to be informed by malice and illegality. Notably, the Plaintiffs have thereafter proceeded to and supplied the particulars of malice and illegalities. 16. It is instructive to note that the Plaintiffs have not alluded to and or raised any complaint against the 2nd Defendant in the body of plaint before the court. Suffice it to underscore, that the details of the 2nd Defendant is only captured in the title of the suit. Furthermore, it is not lost on me that there is no allegation that has been made to show that the impugned actions by and on behalf of the 1st Defendant were [sic] authorized by the 2nd Defendant. 17. Additionally, it is important to highlight that the 2nd Defendant is a creature of the **Constitution, 2010**. Moreover, the mandate and functions of the 2nd Defendant are circumscribed by the **Constitution, 2010**; the **County Government Act, 2012; and the Public Finance Management Act**; respectively. 18. Without purporting to exhaust the mandate of the 2nd Defendant, it is safe to state that the 2nd Defendant is only mandated to provide legislation at the county level and to offer oversight over and in respect of the county government [the executive wing]. 19. To my mind, the 2nd Defendant does not engage in any development activities or convention of public gatherings, in the manner attributed to in the plaint. To this end, it is difficult to understand, nay, comprehend how and on what basis, the 2nd Defendant has been joined in respect of the instant matter. 20. Furthermore, I am aware that the 2nd Defendant by and of itself, is not a legal entity capable of being sued in its own name in ordinary Civil Suits, like the one beforehand. On the contrary, the suit against the 2nd Defendant [where necessary] are taken against the county assembly service board. [See the provisions of the **County Government Act, 2012].** 21. Be that as it may, I am lost as to why the Plaintiffs sought to join the 2nd Defendant in this matter. Moreover, there can be no arguments on the question of vicarious liability, insofar as the 1st Defendant is not an authorized agent of the 2nd Defendant. For good measure, the 1st Defendant is a Hon. Member of the 2nd Defendant. However, the fact that the 1st Defendant is a member of the 2nd Defendant cannot be conflated to mean that same is an agent of the 2nd Defendant. 22. Without belaboring the point, I am afraid that the Plaintiffs herein have brought the suit against the 2nd Defendant, which is in the eyes of the law, is not a legal entity. Insofar as the Second Defendant is not a Legal entity, no suit can legally lie against same. 23. Further, and in addition, there is no gainsaying that no assertions or allegations have been made against the 2nd Defendant. It is not enough for learned counsel for the Plaintiffs to purport that that 2nd Defendant is a necessary party and thus same was lawfully joined on the basis of **Order 1 Rule 3 of the Civil Procedure Rules.** 1. To my mind, the suit as against the 2nd Defendant, was premature; misconceived; and legally untenable. Moreover, there is no cause of action that has been raised against the 2nd Defendant. I repeat, no assertions have been adverted to in the body of the plaint to underpin the joinder of the 2nd Defendant. 2. Before concluding on this issue, it is apposite to reference the decision in the case of **Kigwor Company Limited v Samedy Trading Company Limited [2021] KECA 810 (KLR).** The Court of Appeal stated thus: 36. **In the Court of Appeal case of** **Attorney General & another v Andrew** **Maina Githinji & *Another [2016] eKLR Justice Waki held that:-*** **“A cause of action is an act on the part of the Defendant, which gives the plaintiff his cause of complaint.”** **That definition was given by Pearson J. in the case of *Drummond Jackson* vs. Britain Medical Association (1970) 2 WLR 688 at pg 616. In an earlier case, *Read vs. Brown* *(1889), 22 QBD 128,* Lord Esher, M.R. had defined it as:-** **“Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court.”** **Lord Diplock, for his part in *Letang vs. Cooper* *[1964] 2 All ER 929* at 934 rendered the following definition:-** **“A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.”** 1. Simply put, the name of the 2nd Defendant was improperly joined in the subject suit. In addition, I am afraid that the suit against the 2nd Defendant was/is a nullity *ab intio.* Furthermore, no amount of amendment can remedy the joinder of the 2nd Defendant .[See the holding of the Court of Appeal in the case of **Deposit Protection Fund [in liquidation of Euro Bank Limited] versus Rosaline Njeri Macharia [2016] eKRL]** **Conclusion** 1. Though a party is at liberty to file a suit and join such other parties, as the initiator wishes, it is incumbent upon the initiator of the suit to justify the joinder. The justification can only be provided if and where the facts pleaded in the body of the pleading, demonstrates a semblance of a cause of action. The joinder of a party must not be for ornamental, or cosmetic purposes. **Final orders:** 1. Flowing from the foregoing, it must have become apparent that the application dated the 11.05.2026 is merited. In the premises, the final orders that commend themselves to the court are: 2. ***The Application dated 11.05.2026 be and is hereby allowed.*** 3. ***The name of the 2nd Defendant be and is hereby struck out from the suit.*** 4. ***Costs of the Application be and are hereby awarded to the 2nd Defendant.*** 5. ***Costs of the Suit be and are hereby awarded to the 2nd Defendant.*** 6. ***The costs in terms of clause [iii] and [iv] shall be agreed upon and in default be taxed in the conventional manner***. 7. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU THIS 4TH DAY OF JUNE , 2026.** **OGUTTU MBOYA, FCIArb;CPM[MTI-EA]** **JUDGE.** In the presence of-: Court Assistant: Mukami/Zakayo Ms. Githinji for the 2nd Defendant/Applicant Mr. Atheru for the Plaintiffs/Respondents Ms. Miranda Senior Litigation Counsel for 3rd and 4th Defendant Mr. Ken Muriuki for the 1st Defendant Mrs. Maina for the Interested Party