https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10832

Oduor & another v Headlink Publishers t/a Weekly Citizen & 3 others (Civil Suit E031 of 2025) [2026] KEHC 10832 (KLR) (20 July 2026) (Ruling) Neutral citation: [2026] KEHC 10832 (KLR) Republic of Kenya In the High Court at Eldoret Civil Suit E031 of 2025 RN Nyakundi, J July 20, 2026 Between Maurice Oduor 1st Plaintiff Dr June Chebichii Odour 2nd Plaintiff and Headlink Publishers T/A Weekly Citizen 1st Defendant Jared Opiyo 2nd Defendant Kipkesei Beatrice Jeruto Alias Kesei 3rd Defendant Dan Okemwa 4th Defendant Ruling 1.Before Court is a notice of motion dated 10th March 2026 brought Under Sections 1A, 1B and 3A of the Civil Procedure Act; Order 2 Rule 15 (1) (a) (b) & (d) and Order 51 Rule 1 of the Civil Procedure Rules; Articles 10, 25(c), 48, 50(1) and 50(2)(c) of the Constitution of Kenya 2010. The Applicant is seeking the following orders:a.Spent.b.Pending the hearing and determination of this Application inter-parties, the hearing scheduled for 11ᵗʰ March 2026 be stayed.c.The Plaintiffs' Suit against the 4ᵗʰ Defendant be struck out for disclosing no reasonable cause of action and being an abuse of the court process.d.The costs of this application and the suit be awarded to the 4ᵗʰ Defendant. 2.The application is based on grounds that:a.​The Plaintiffs have no Cause of Action against the 4ᵗʰ Defendantb.The Amended Plaint fails to state any defamatory words uttered or published by the 4ᵗʰ Defendant.c.The Plaintiffs have failed to provide any evidence to show that the 4ᵗʰ Defendant is the owner or creator of the Facebook page known as "Lawyers Rule!".d.The Plaintiff has failed to provide any evidence to link the 4ᵗʰ Defendant to the said Facebook group. Therefore, the 4ᵗʰ Defendant cannot bear any personal liability for independent content posted by third-party members of the group.e.The 4ᵗʰ Defendant does not exercise any control over any of the members of the said group.f.The 2ⁿᵈ Plaintiff has no cause of action concerning the alleged defamationg.The alleged Defamatory comments by the 4ᵗʰ Defendant's made no reference whatsoever to the 2ⁿᵈ Plaintiff, her character, or the Plaintiffs' marriage.h.Consequently, no cause of action exists in favor of the 2ⁿᵈ Plaintiff against the 4ᵗʰ Defendant. Violation of the Right to a Fair Trial (Article 50).i.The 4ᵗʰ Defendant was joined to these proceedings at the tail end via an Amended Plaint dated 3ʳᵈ December 2025 and was only served with the pleadings and a Mention Notice for the first time on 10ᵗʰ February 2026.j.The Suit has been precipitately listed for Hearing on 11ᵗʰ March 2026, leaving the 4ᵗʰ Defendant with less than thirty (30) days to prepare a defense against complex allegations of defamation.k.The 4ᵗʰ Defendant was served on 10ᵗʰ February 2026 for a hearing on 11ᵗʰ March 2026. This short window prevents the 4ᵗʰ Defendant from effectively preparing his defence, calling witnesses, or reviewing the electronic evidence.l.Article 50(2)(c) Guarantees every person the right to have adequate time and facilities to prepare a defense. Forcing a hearing within 30 days of service in a complex defamation suit is a "trial by ambush." 3.The application is supported by the affidavit sworn by Dan Okemwa Learned Counsel for the Applicant who stated as follows:a.​​I am the 4ᵗʰ Defendant/ Applicant herein and I am duly authorised to swear this Affidavit.b.So as to avoid duplication of material already before court record.c.There is now produced and shown to me copies of the documents from pages 1- forming the bundle of documents in support of the Application filed herewith and which exhibit is marked 'DO-1'.d.The Plaintiffs have no Cause of Action against the 4ᵗʰ Defendante.The Amended Plaint fails to state any defamatory words uttered or published by me.f.The Plaintiffs have failed to provide any evidence to show that I am the owner or creator of the Facebook page known as "Lawyers Rule!".g.The Plaintiff has failed to provide any evidence to link me to the said Facebook group. Therefore, I cannot bear any personal liability for independent content posted by third-party members of the group.h.I do not exercise any control over any of the members of the said group.i.The 2ⁿᵈ Plaintiff has no cause of action concerning the alleged defamationj.The alleged Defamatory comments by me made no reference whatsoever to the 2ⁿᵈ Plaintiff, her character, or the Plaintiffs' marriage.k.Consequently, no cause of action exists in favor of the 2ⁿᵈ Plaintiff against me.l.No particulars of the Group and the Membership of the said Group have been provided.m.The entire suit and application are scandalous, frivolous and vexation and intended to embarrass me.n.This entire suit is incurably defective and should be struck out with costs to the Defendants.o.Violation of the Right to a Fair Trial (Article 50)p.I was joined to these proceedings at the tail end via an Amended Plaint dated 3ʳᵈ December 2025 and was only served with the pleadings and a Mention Notice for the first time on 10ᵗʰ February 2026.q.​The Suit has been precipitately listed for Hearing on 11ᵗʰ March 2026, leaving the 4ᵗʰ Defendant with less than thirty (30) days to prepare a defense against complex allegations of defamation.r.A Copy of the Judiciary E filing portal showing the case activity is at page 2 to 6.s.I was served on 10ᵗʰ February 2026 for a hearing on 11ᵗʰ March 2026. This short window prevents me from effectively preparing my defence, calling witnesses, or reviewing the electronic evidence.t.Article 50(2)(c) Guarantees every person the right to have adequate time and facilities to prepare a defense. Forcing a hearing within 30 days of service in a complex defamation suit is a "trial by ambush." Legal Analysis and Decision 4.In this suit the Plaintiffs filed the primary suit involving the following parties:a.Headlink Publishers T/A Weekly Citizen – 1st Defendantb.Jared Opiyo – 2nd Defendant. 5.Thereafter, an amended petition was filed with further details on joinder of parties who included the 3rd and 4th Defendants namely: Kipkesei Beatrice Jeruto Alias Kesei and Dan Okemwa. This amendment of the Plaint occasioned filing of the present application seeking for the 4th defendant to be struck out of the proceedings. The Law 6.In Kenya’s civil legal system the joinder of parties is primarily governed by Order 1 of the Civil Procedure Rules. The Plaintiff, Claimant or Petitioner can add or substitute parties at any stage of the proceedings using formal chamber summons or notice of motion provided the joinder is necessary to resolve all questions in the suit, claim or petition. 7.This provision has been litigated before our Superior Courts as demonstrated by the following authorities which now crystalized the threshold issue on joinder under Order 1 of the Civil Procedure Rules: Kilonzo v Musyoki & another (Environment and Land Case [2026] eKLR): The Court reiterated that the primary test for adding a party under Order 1 Rule 10(2) is necessity. The judge emphasized that an intended party's presence must be necessary to effectually settle the dispute. Maluki & 6 others (Environment and Land Court): The Court outlined the test for joinder, holding that a party's interest in the suit must be identifiable, proximate, and not merely peripheral. It must also be proven that the joined party's presence will aid in a complete settlement and prevent future multiplicity of suits JAO v Homepark Caterers Ltd & 2 others [2004] eKLR: The High Court assessed misjoinder of causes of action, noting that a suit will not be defeated solely on technical grounds of misjoinder. Instead, courts can exercise their discretion to order separate trials to prevent delays. Consideration of Misjoinder of Causes of Action (High Court Civil Case): The Court affirmed that separate and distinct causes of action cannot be bundled into a single joint claim if there is no common act, transaction, or question of law binding all parties together. 8.In terms of comparative jurisprudence Order 1 Rule 10 of Civil Procedure Code of India is similar to our Order 1 Rule 10 of the Civil Procedure Rules and that is why is find the relevant threshold principles applicable to the facts of this notice of motion in terms of context and text. Thus: 9.Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre & Foods Pvt. Ltd. (2010): A landmark ruling that clearly distinguishes between "necessary parties" (those without whom no effective decree can be passed) and "proper parties" (those whose presence helps complete adjudication), and defines the court's discretionary power to implead parties. Further in Prem Lala Nahata & Anr. v. Chandi Prasad Sikaria (2007): The Supreme Court clarified that misjoinder of parties is a curable procedural defect, can be waived, and does not result in the outright dismissal or rejection of a plaint. Finally in Razia Begum v. Sahebzadi Anwar Begum (1958): A foundational Constitution Bench case that established guidelines for the addition of parties, specifically concerning who has a direct interest in the subject matter of the suit. 10.From the above decisions both locally and internationally, it follows that if a person is a necessary party to a suit he can be joined dispute his or her objection taken so as to defeat the ends of justice to be met in the matter. The Plaintiffs’ Legal Counsel has laid down evidential material in the suit of such a character that the 4th Defendant is not a busy body but unnecessary Defendant in so far as the pending proceedings are concerned in which the Plaintiffs have sued under the tort of defamation. The appropriate notice has been issued by the Plaintiffs in the pleadings as to why the 4th Defendant has been sued with regard to the remedies being sought in the suit. 11.This is what the Court emphasized within the factual matrix of this motion in the case of Mumbai International Airport Private Limited v, Regency Convention Centre and Hotels Private Limited and Others [2010] 7 SCC 417:“15.A “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a “necessary party” is not impleaded, the suit itself is liable to be dismissed. A “proper party”, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the Plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the Plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance,” 12.In the legal spectrum outlined by the Plaintiffs, the absence of the 4th defendant might render any decree rendered by this Court fatally defective and therefore the specific objection taken with regard to non-joinder is therefore dismissed. 13.From the above, it is now clear that the Plaintiffs have satisfied the test that there is a right to some relief against the 4th Defendant in respect of the controversies involved in the proceedings and no effective decree can be passed in absence of the 4th defendant. The cost of this application do abide the outcome of the main suit. This case docket shall be mentioned before the Presiding Judge for purposes of allocating a forum of conveniens to hear and determine the substantive suit on 27th July 2026. DATED AND DELIVERED THIS 20TH DAY OF JULY 2026.…………………………………….R. NYAKUNDIJUDGE