https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9280

Wachuka & another v Kiptoo, Principal Secretary National Treasury & 4 others (Commercial Case E704 of 2024) [2026] KEHC 9280 (KLR) (Commercial and Tax) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9280 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E704 of 2024 PM Mulwa, J June 25, 2026 Between Mary Wachuka 1st Plaintiff Jipe Inc 2nd Plaintiff and Chris Kiptoo, Principal Secretary National Treasury 1st Defendant Felix Koskei, Head Of Public Service 2nd Defendant The Hon Attorney General 3rd Defendant Jayesh Saini 4th Defendant Eric Kipkoech Ngeno 5th Defendant Ruling 1.This ruling dispose two applications. The first application is a Chamber Summons dated 22nd April 2025 filed by the 1st, 2nd, and 3rd Defendants/Applicants. They seek to have their names struck out from the suit on grounds that the Plaint discloses no reasonable cause of action against them, that they have been improperly joined, and that the suit against them is frivolous, vexatious, and an abuse of the court process. 2.The second application is a Notice of Motion dated 28th April 2025 filed by the 4th Defendant/Applicant, Mr. Jayesh Saini. He similarly seeks to have the suit against him struck out for non-disclosure of a reasonable cause of action, contending that no contractual relationship existed between himself and the Plaintiffs, that no representations were exchanged between himself and the Plaintiffs, and that the allegations against him are unsustainable in law. 3.The Plaintiffs oppose both applications through their Replying Affidavit sworn on 19th May 2025 and a Further Affidavit sworn on 30th October 2025. They contend that the applications are premature and that the suit discloses substantial triable issues against all the Defendants, who they allege acted jointly in inducing the Plaintiffs to enter into a contract for the development of specialized software for the Government of Kenya. 4.The applications were canvassed by way of written submissions. 5.I have carefully analyzed and considered the applications, the affidavits filed in support and opposition, the submissions by Counsels, and the relevant authorities, the following issues arise for determination:i.Whether the Plaint discloses a reasonable cause of action against the 1st, 2nd, and 3rd Defendants.ii.Whether the 1st, 2nd, and 3rd Defendants are improperly joined in this suit.iii.Whether the suit against the 1st, 2nd, and 3rd Defendants is frivolous, vexatious, or an abuse of the court process.iv.Whether the Plaint discloses a reasonable cause of action against the 4th Defendant.v.Whether the 4th Defendant is improperly joined in this suit.vi.What orders should this Court make as to costs. 6.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;“(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…” 7.The jurisprudence governing the striking out of pleadings is now well-settled in our jurisdiction. Striking out pleadings is draconian in nature, and the Court’s discretionary power ought to be exercised with the utmost circumspection. 8.It is a cardinal principle of our legal system that partiesshould be accorded the opportunity to have their disputes resolved on merit through a full trial. 9.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 stated the applicable threshold, thus:“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.” 10.The test for determining whether a reasonable cause of action is disclosed is whether, assuming all the allegations in the Plaint to be true, the Plaintiff is entitled to any remedy against the Defendant. As was held in Drummond-Jackson v British Medical Association [1970] 1 WLR 688, a cause of action means one with some chance of success when only the allegations in the Plaint are considered. 11.The Applicants argue that the Plaint contains no direct allegations against them. They contend that all factual allegations relate to the 5th Defendant and that the Plaint contains generic references that the 5th Defendant acted "on behalf of the Government" without any specific pleading of authority, mandate, or direct participation by the 1st, 2nd, and 3rd Defendants. 12.With respect, I find this argument unpersuasive. A careful reading of the Plaint reveals that while the primary actor appears to be the 5th Defendant, the Plaintiffs have pleaded that the 5th Defendant was acting as an agent of the Government and that the alleged representations and assurances were made with the knowledge and approval of senior government officials, including the 1st and 2nd Defendants. The Plaintiffs specifically plead in paragraph 32 of the Plaint that the 5th Defendant made false misrepresentations "with the knowledge and approval and on behalf of the other Defendants." 13.The Plaintiffs further allege that the 5th Defendant represented that funding would be sourced from the National Treasury's confidential vote, which falls within the purview of the 1st Defendant as the Principal Secretary of the National Treasury, and that the 5th Defendant had organized a meeting between the Plaintiffs, the Head of Public Service (the 2nd Defendant), and the Principal Secretary of the National Treasury (the 1st Defendant) to discuss financing. 14.The question whether these allegations are true is a matter for trial. At this preliminary stage, this Court is not required to determine the merits of the claim. It is sufficient that the Plaintiffs have pleaded sufficient facts which, if proved, could establish a cause of action against the Applicants. 15.In Hamptons Hospital Limited v Chief Justice & President of the Supreme Court of Kenya & 2 Others [2025] KEHC 1173 (KLR) the Court held that a party is a necessary party if its presence is required to effectually and completely adjudicate the issues in dispute. The presence of the 1st and 2nd Defendants, as senior government officials whose alleged actions or inactions are central to the Plaintiffs' claim, would enable this Court to effectually determine whether the Government of Kenya, through its officers, made representations that induced the Plaintiffs to act to their detriment. 16.The Applicants' reliance on the doctrine of ex turpi causa non oritur actio is also misplaced. The illegality of the alleged contract, if any, is a triable issue of mixed fact and law. It is not a ground for striking out a suit at this preliminary stage unless the illegality is apparent on the face of the Plaint. The Plaintiffs have pleaded that the software was intended for legitimate purposes such as managing government communications and public engagement. Whether the project was illegal or unconstitutional is a matter for the trial court to determine after a full hearing. 17.The Court of Appeal in DT Dobie (supra) cautioned that the summary jurisdiction to strike out was never intended to be exercised by a minute and protracted examination of documents and facts to see whether the plaintiff really has a cause of action. 18.On the second issue of whether the 1st, 2nd, and 3rd Defendants are improperly joined, the law on joinder of parties is found in Order 1 Rule 3 of the Civil Procedure Rules, which provides:“All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons, any common question of law or fact would arise.” 19.In the case of Kenya Commercial Bank v Titus Kilonzo Mutua & 24 Others [2006] eKLR, the Court held that where various claims against different defendants arise from the same transaction or series of acts or transactions, and where a common question of law or fact would arise if separate suits were brought, joinder is proper and permissible. 20.The Plaintiffs' claim arises from a single, continuous web of events involving coordinated representations and actions by all the Defendants. The Plaintiffs allege that the 5th Defendant acted as an agent of the Government and that the 1st, 2nd, and 3rd Defendants, as senior government officials, were aware of and approved the project. The liability of each Defendant cannot be properly adjudicated without examining the role and evidence of the others. To strike out the Applicants would fragment the dispute and risk contradictory findings. 21.The 3rd Defendant, the Honourable Attorney General, is also properly joined. Under Article 156(4)(a) of the Constitution, the Attorney General is the principal legal adviser to the Government and represents the National Government in civil proceedings. Since the Plaintiffs are suing government officials for acts done or allegedly done in the course of their official duties, the Attorney General is a necessary party. 22.As I have already found that the Plaint discloses a reasonable cause of action and that the Applicants who are properly joined, it follows that the suit against them cannot be described as frivolous, vexatious, or an abuse of the court process. The Plaintiffs have raised serious allegations of fraudulent misrepresentation, breach of contract, and constitutional violations. These are matters that require full ventilation at trial. 23.I therefore find that the suit against the 1st, 2nd, and 3rd Defendants is not frivolous, vexatious, or an abuse of the court process. 24.In light of the foregoing, the Applicants' application dated 22nd April 2025 is dismissed in its entirety. 25.The 4th Defendant, also argues that the Plaint discloses no reasonable cause of action against him because there was no direct communication or contractual relationship between himself and the Plaintiffs. He contends that he was merely referenced in conversations between the Plaintiffs and the 5th Defendant, and that such references constitute hearsay. He further argues that he was not an employee or officer of the Government and could not, therefore, procure a contract on behalf of the Government. The 4th Defendant also contends that being described as a "regime-financier" is not legally possible because all government financing processes are regulated by the Constitution and the Public Finance Management Act. 26.I have carefully considered the Plaint and the extensive exhibits annexed to the Plaintiffs' affidavits, including the WhatsApp conversations. The Plaintiffs have pleaded that the 5th Defendant introduced the 4th Defendant to the 1st Plaintiff as "the regime's financier" and "oligarch" who was tasked with funding the project. The Plaintiffs allege that the 4th Defendant confirmed this role himself during a meeting at his office on 22nd November 2023 and that he participated in strategic discussions regarding the project. 27.The Plaintiffs further plead in paragraph 13 of the Plaint that the 5th Defendant represented that the 4th Defendant was the conduit through which the government would channel payments, given the confidentiality of the project, and that the 4th Defendant would also oversee the project's implementation. These are specific allegations of active participation by the 4th Defendant in the events giving rise to the dispute. 28.While it is true that there is no evidence of direct communication between the Plaintiffs and the 4th Defendant in the form of emails or WhatsApp messages, the Plaintiffs have pleaded that the 4th Defendant was a central actor in the events giving rise to the dispute. The Plaintiffs allege that the 4th Defendant participated in meetings, made representations about his role as a government financier, and coordinated the withholding of payment after the Plaintiffs had acted in reliance on the representations made by the 5th Defendant and the 4th Defendant himself. 29.At this stage, the Court is not required to determine whether these allegations are true. It is sufficient that the Plaintiffs have pleaded a prima facie case against the 4th Defendant. The question whether the 4th Defendant was acting as an agent of the Government or as a private individual, whether he owed any duty to the Plaintiffs, and whether he made any misrepresentations are all matters for trial. 30.The 4th Defendant's argument that he lacked the capacity to enter into a contract on behalf of the Government is a matter of law that can be argued at trial. The Plaintiffs have pleaded that the 4th Defendant had the authority and capacity to fund and oversee the project. These are contested facts that cannot be resolved on affidavit evidence. 31.In the DT Dobie case (supra), the Court cautioned against conducting a "minute and protracted examination of documents and the facts of the case in order to see whether the plaintiff really has a cause of action." To do so, the Court held, would be to usurp the position of the trial judge and to produce a trial on affidavits only. I cannot conduct such an examination at this stage. 32.In addressing the issue as to whether the 4th Defendant is improperly joined, his argument is based on the same grounds as those by the 1st, 2nd and 3rd Defendants. For the reasons I have already given, I find that the Plaintiffs have pleaded a common substratum of facts that link the 4th Defendant to the events giving rise to the dispute. The allegations against the 4th Defendant arise out of the same transaction or series of transactions as the allegations against the other Defendants. A common question of law and fact would arise if separate suits were brought. The joinder of the 4th Defendant is therefore proper and consistent with Order 1 Rule 3 of the Civil Procedure Rules. 33.I find the reasoning in Civicon Limited v Kivuwatt Limited & 2 Others [2015] eKLR instructive, where the Court held that the objective of the joinder rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence without inconvenience and to avoid multiplicity of proceedings. A party reasonably affected by the pending litigation is a necessary and proper party and should be enjoined. The 4th Defendant, having been actively involved in the events leading to the dispute, is a necessary party for the complete adjudication of the matter. 34.The 4th Defendant's contention that he is being sued merely for being described as a "regime-financier" is a mischaracterization of the Plaintiffs' case. The Plaintiffs have pleaded specific acts of participation by the 4th Defendant, including attending meetings, making representations about his role, and being the conduit for funding. These are actionable allegations that, if proved, could establish liability against the 4th Defendant. 35.I therefore find that the 4th Defendant is properly joined in this suit. 36.In light of the foregoing, the 4th Defendant's application dated 28th April 2025 is dismissed. 37.In conclusion, I find that both applications lack merit. The Plaintiffs have raised serious triable issues that should be determined at a full hearing. Accordingly, I make the following orders:a.The Chamber Summons dated 22nd April 2025 is hereby dismissed.b.The Notice of Motion dated 28th April 2025 is hereby dismissed.c.Costs of both applications shall be in the cause. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 25TH DAY OF JUNE 2026.PETER MULWAJUDGEIn the presence of:Mr. Nyangena for PlaintiffMr. Gakaria for 1st Defendant/applicantMs. Leven h/b for Mr. Njenga for 2nd DefendantCourt Assistant: Lispa