https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5059

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT NAIROBI** **ELC L CASE NO. E038 OF 2023** **DAPHINE MUENI MUSYOKI ………………....……………….. 1ST PLAINTIFF** **JOHN BOSCO KYULE KITELE …..…………..………………… 2ND PLAINTIFF** **VERSUS** **SAPNA DAVE ……………………………….………………….. 1ST DEFENDANT** **PETER GIKURA MBURU ……………………….……………. 2ND DEFENDANT** **PETERSON IRUNGU KIMENYA …………………………….. 3RD DEFENDANT** **ADAN DENGE ………………………………………………… 4TH DEFENDANT** **ABDILLAHI HUSSEIN ………………………………………… 5TH DEFENDANT** **JAMAL ABDINOOR ………………….……………………… 6TH DEFENDANT** **RULING** 1. The 5th and 6th Defendant by an application dated 29.10.2025 is asked the court to strike out the suit brought against them by a plaint dated 8.2.2023. The grounds are set out on the face of the application and in a supporting affidavit of Jamal A. Abdinoor, the 6th Defendant sworn on 29.10.2025. 2. It is deposed by the 6th Defendant that the proceedings him and the 5th Defendant are improper, he has no personal, proprietary or beneficial interest in the outcome of this suit. The 6th Defendant deposes that the 5th Defendant was only sued because they shared an office space at the time of filing the suit yet they have no connection, interest or involvement in the property in dispute. 1. Striking out a suit is a discretionary power a court must exercise with caution since as far as possible, a court should always strife to sustain rather than terminate litigation at a preliminary stage. In **D.T Dobie and Co. Ltd –vs- Joseph Muchina (1982)KLR1,** the court said that it must act with caution and consider all facts of the case without embarking upon a trial before dismissing a suit. 2. In **Blue Shield Insurance Co. Ltd vs Joseph Mboya Oguttu (2009) KECA 221 (KLR)**,the Court stated: ***"The power to strike out should be exercised after the Court has considered all facts, but it must not embark on the merits of the case itself as this is solely reserved for the trial Judge. On an application to strike out pleadings, no opinion should be expressed as this would prejudice fair trial and would restrict the freedom of the trial Judge in disposing the case.***" The Court further stated: ***"The power to strike out a pleading which ends in driving a party*** ***from the judgment seat should be used very sparingly and only in cases where the pleading is shown to be clearly untenable”*** 1. Striking out pleadings as a judicial Scalpel; as draconian as it has been described is governed by Orders 2 Rule 15, 1 Rule 10 and Order 6 of the Civil Procedure Rules. It has to be exercised only in plain and obvious cases. See **Kivanga Estate Ltd vs National Bank of Kenya [2017] KECA 591 (KLR)** and **Evanson Jidraph Kamau Waitiki vs Kenya Power & Lighting Company [2017] KECA 526 (KLR)**. 2. Some of the grounds for striking out a suit or a party from a suit are where the suit against a party amounts to an abuse of the court process where he is not necessary parties to the suit and where the suit discloses no cause of action against him. 3. Abuse of the court process, was defined in **Energy Regulatory Commission vs John Sigura Otido (2021) KECA 1060 (KLR)** where the court cited with approval **Muchanga Investment Ltd vs Safaris Unlimited (Africa) Ltd and 2 others[2009] KECA 453(KLR)** as the improper use of judicial power in litigation with the sole intention of vexing a party or interfering with the administration of justice. 4. On the other hand, necessary party has been defined as a party who ought to joined as a party in a suit, and in whose absence no effective decree can be passed in a proceeding. See **Jan Bolden Nielsen vs Herman Philipus Steyn & 2 Others [2012] KEHC 5529 (KLR).** 5. In **M’imwenda & another vs Mire (Civil Appeal (Application) 3 of 2019) [2024] KECA 1257 (KLR)(20 September 2024)(Ruling)** the court cited with approval **Mbaki & others vs Macharia & Another (2005) 2 EA 206** that a party likely to be affected by the outcome of the Appeal had the right to be heard as under by the rules of natural justice. 6. Black's Law Dictionary (12th ed.) defines a cause of action as **"a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person."** In **D.T. Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1**, the Court of Appeal held that while the power to strike out pleadings should be exercised sparingly, a suit that plainly discloses no reasonable cause of action ought not to be permitted to proceed. 7. In **Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55**, the court observed that a reasonable cause of action is one founded on facts giving rise to an enforceable legal right or liabity against the defendant. 8. The claim against the defendants as pleaded in the plaint dated 8.2.2023 is in general form. It is not pleaded that the 5th and 6th Defendants hold any beneficial or proprietary interest in the suit property. It is it no specificity that the 5th and 6th defendants committed any act of trespass, fraud, conspiracy, breach of statutory duty, or any other actionable wrong against the suit the suit property or its owners. 9. It is alleged that the 6th Defendant acted as an advocate for the 1st Defendant and is the proprietor of the Abdi Noor Jamal & Company Advocates which paid the security company guarding the suit premises. The mere fact that an advocate performs acts pursuant to instructions received from a client does not, without more, render the advocate personally liable in proceedings concerning the subject matter of the representation. To hold otherwise would expose advocates to personal liability merely for discharging their professional obligations. 10. Looking at the Plaint before this court, it is devoid of material particulars demonstrating any independent wrongdoing on the part of the 5th and 6th Defendants. The payment of security services and the presence at their offices standing alone, are without mere not actionable wrong capable of sustaining a claim against him. 11. The Supreme Court in **Communications Commission of Kenya & 4 Others v Royal Media Services Ltd & 7 Others [2014] eKLR** emphasized that a party should only be joined to a suit where his presence is necessary to enable the Court to effectually and completely adjudicate upon the questions in controversy. In the absence of any specific pleaded cause of action against the 5th and 6th Defendants, there continued participation serves no useful purpose. 12. The Court is therefore persuaded that the 5th and 6th Defendants have been improperly joined. There continued inclusion in the proceedings would unnecessarily burden them and which would amount to permitting litigation to continue against parties against whom no legally recognizable right or liability has been disclosed. 13. The Plaint does not set out any material facts demonstrating how either of the two Defendants participated in the alleged wrongful acts to became personally liable to the Plaintiffs. 14. The law requires that every pleading must contain material facts constituting the cause of action. Mere inclusion or association of the two defendants with the rest of the defendants do not suffice. If the Plaintiff intended to allege fraud, conspiracy or collusion against the two defendants, such allegations ought to have been specifically pleaded with full particulars as required by the Civil Procedure Rules. 15. In **Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000]** **eKLR,** the Court of Appeal held that allegations of fraud or illegality must not only be specifically pleaded but must also be strictly proved. 1. Accordingly, I make the following orders: 2. The Notice of Motion dated 29/10/2025 is hereby allowed. 3. The names of the 5th and 6th Defendants are struck out from these proceedings pursuant to Order 1 Rule 10(2) of the Civil Procedure Rules. 4. The Plaint as against the 5th and 6th Defendants is hereby struck out under Order 2 Rule 15(1) (a) of the Civil Procedure Rules. 5. The costs of the application and the suit as against the 5th and 6th Defendants shall be borne by the Plaintiff at lower scale. **DATED SIGNED AND DELIVERED AT NAIROBI THIS 29TH DAY OF JULY, 2026** **HON. JUSTICE C.K NZILI** **JUDGE** **In the presence of:** Court Assistant: Julius