https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3980

Wambugu & 2 others v Mocha Property Owners Ltd & 2 others (Environment and Land Petition E009 of 2024) [2026] KEELC 3980 (KLR) (16 June 2026) (Ruling) Neutral citation: [2026] KEELC 3980 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Petition E009 of 2024 JM Onyango, J June 16, 2026 Between Robert Mwara Wambugu 1st Petitioner Joseph Mukabi 2nd Petitioner Nickolas Gathima Kamore 3rd Petitioner and Mocha Property Owners Ltd 1st Respondent Oaklands Properties Kenya Ltd 2nd Respondent and National Environmental Management Authority Interested Party Ruling 1.By a Notice of Motion dated 8th October 2025, the 1st Respondent/Applicant seeks an Order to strike out and discharge them from these proceedings on the ground that their joinder is unnecessary. It is further prayed that the costs of the application be awarded to the Applicant. 2.The Applicant contends that no claim is directed against it and that its continued participation serves no material purpose in the determination of the dispute as framed. 3.The application is premised on the grounds on the face of it and the supporting affidavit of James Marumi sworn on even date. 4.The Applicant contends that they were the Lessor of the property known as Land Reference Number Ruiru/Mugutha/Block 3/3 (hereinafter ‘the suit property’) popularly known as ‘Springs Estate.’ 5.The Applicant states that they entered into a Sale Agreement with the 1st Petitioner on 11th March 2022, with the 2nd Petitioner on 10th May 2022 and with the 3rd Petitioner on 30th November 2022, 20th July 2023 and a Deed of Variation of the Sale Agreement dated 30th November 2022 on 15th March 2023. 6.The Applicant maintains that upon completion of the transactions, the Petitioners were registered as proprietors of their respective plots with the transfers being effected in accordance with the Land Registration Act CAP 300. 7.The Applicant contends that in accordance with Clause 8 of the Agreements for Sale and the governing Lease structure, all reversionary, residual and management interests in the Estate vested in the 2nd Respondent, the management company established to manage the estate. 8.The Applicant further contends that upon the sale of the properties to the Petitioners, the Applicant relinquished any legal interest in the suit property. 9.The Applicant asserts that the 2nd Respondent is contractually mandated to handle the management, maintenance and dispute resolution relating to the lessees and owners of units within the property. 10.The Applicant asserts that the Petitioners’ course of action hinges on the lack of provision of drainage systems to drain storm waters in case of heavy rainfall. 11.It is the Applicant’s position that upon purchasing their respective properties, the Petitioners acquired shares in the 2nd Respondent and became part of the governance and dispute resolution framework of the management company together with the other proprietors in the estate. Accordingly, they contend that the Petitioners having acquired ownership and shares in the 2nd Respondent are estopped in law and equity from seeking recourse against the Applicant in relation to disputes that fall outside the vendor/ purchaser relationship. 12.The Applicant contends that the Petitioners have not demonstrated any privity of contract, fiduciary obligation or continuing legal duty owed to them by the Applicant after completion of the sale transactions thus no sustainable claim lies against the Applicant. 13.It is the Applicants position that their continued retention in the proceedings is unnecessary and distracts the Court from addressing the real issues in controversy between the Petitioners and the 2nd Respondent. 14.The application was vigorously opposed through the replying affidavit of the 1st Petitioner/Respondent, Robert Mwara Wambugu sworn on 29th October 2025, wherein the Respondent maintained that the Applicant’s joinder to the proceedings was neither accidental nor superfluous, but necessary for the complete and effectual determination of the matters in controversy. 15.The Petitioners contended that the application is a delay tactic and an abuse of the court process. 16.The Petitioners state that the Applicant remains the owner of parcels adjoining the suit property and cannot therefore be divorced from the controversy now before the Court. 17.The Petitioners contend that lease registered on 20th July 2020 identifies three parties to the arrangement including the Applicant herein who is yet to fully relinquish its proprietary interest in the estate to the 2nd Respondent. 18.The Petitioners further state that the drainage works complained of by the Petitioners cannot be undertaken without entry into and interference with the common areas of the development, which common areas are said to remain vested in the Applicant and the 2nd Respondent as lessors of the entire block. It is therefore contended that the Applicant’s presence in the proceedings remains necessary for the effectual and complete determination of the dispute. 19.The Petitioners also asserted that the allegation that the Applicant failed to transfer the shares of the management company to the Petitioners had not been rebutted, further underscoring the Applicant’s continued nexus to the matters in controversy. 20.The application was canvassed by way of written submissions duly considered by the Court. 21.Having examined the application, the replying affidavit in opposition, the filed submissions and the relevant authorities, the key issue that emerges for determination is: Whether the Applicant is a necessary and proper party to the proceedings. Analysis and Determination 22.In constitutional petitions, the applicable law on joinder of parties is found under Rule 5 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (‘Mutunga Rules’), which vests the Court with discretion to strike out or remove a party whose presence is unnecessary to the determination of the issues in dispute. 23.Rule 5 of the Mutunga Rules provides:“The following procedure shall apply with respect to addition, joinder, substitution and striking out of parties—(a)Where the petitioner is in doubt as to the persons from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable, and to what extent, may be determined as between all parties.(b)A petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute.c)Where proceedings have been instituted in the name of the wrong person as petitioner, or where it is doubtful whether it has been instituted in the name of the right petitioner, the Court may at any stage of the proceedings, if satisfied that the proceedings have been instituted through a mistake made in good faith, and that it is necessary for the determination of the matter in dispute, order any other person to be substituted or added as petitioner upon such terms as it thinks fit.(d)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 just—(i)order that the name of any party improperly joined, be struck out; and(ii)that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added. (emphasis mine)(e)Where a respondent is added or substituted, the petition shall unless the court otherwise directs, be amended in such a manner as may be necessary, and amended copies of the petition shall be served on the new respondent and, if the court thinks, fit on the original respondents.The import of the foregoing provision is that joinder is not determined by the mere naming of a party in pleadings, but by the practical necessity of that party’s presence in the complete and effectual resolution of the dispute.” 24.From the foregoing, rule 5(d) establishes that a party against whom no sustainable grievance is disclosed, and whose participation adds nothing to the adjudication of the issues before the Court, ought not to be retained in proceedings unnecessarily. Conversely, where a party’s legal, proprietary, or factual connection to the controversy remains live and unresolved, the Court must exercise caution before ordering their removal from the proceedings. 25.That principle finds clear support in Kenyan jurisprudence, which makes plain that the Court’s concern is not with names on the pleadings, but with whether the party sought to be retained or removed is in truth necessary to the full and effectual resolution of the controversy. 26.In Mwilu v Judicial Service Commission & 2 others; Director of Public Prosecutions & another (Intended Respondent) [2020] KEHC 2745 (KLR), the Court observed that there must exist a discernible claim against the party sought to be retained in the proceedings, and further, that such party’s presence must be necessary to enable the Court effectually and completely adjudicate upon and settle all questions involved in the dispute. The Court further recognised that a petitioner is ordinarily at liberty to identify the parties against whom relief is sought, and that joinder ought not to be sustained where no relief flows from the impugned party. 27.In the instant application, the parties have taken markedly different positions as to the nature and extent of the Applicant’s connection to the dispute. Whereas the Applicant maintains that no substantive relief is sought against it and that its role in the affairs giving rise to the Petition has effectively ceased, the Petitioners contend that the Applicant remains intertwined with the substratum of the dispute. 28.The issue arising is therefore not whether the parties agree on the Applicant’s role, but whether, on the pleadings and material presently before the Court, the Applicant’s participation remains necessary to the effectual and complete determination of the controversy disclosed in the Petition. 29.The Court is mindful that the power to strike out a party from proceedings is one to be exercised sparingly and with circumspection. 30.In Yaya Towers Limited v Trade Bank Limited (In Liquidation) [2000] KECA 427 (KLR), the Court of Appeal observed:“A plaintiff is entitled to pursue a claim in our Courts however implausible and however improbable his chances of success. Unless the defendant can demonstrate shortly and conclusively that the plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of the process of the court, it must be allowed to proceed to trial.” 31.That caution bears particular significance in constitutional proceedings, where the premature removal of a party may foreclose a complete determination of issues whose contours only fully emerge upon fuller ventilation of the evidence. 32.In the instant application, the connection between the impugned party and the subject matter remains actively contested. That contest places in issue the proper test for joinder under Rule 5 of the Mutunga Rules. 33.The approach to be adopted under Rule 5 of the Mutunga Rules was considered in Mwilu (Supra), where the Court set out the parameters within which joinder and removal of parties ought to be assessed as follows:“A reading of Rule 5 of the Mutunga Rules in its entirety appear to support the Petitioner’s argument that it is only the parties before the court who can move the court for the addition, joinder, substitution and striking out of parties. Any case filed before the court is between the parties before court. A petitioner identifies and sues the person or persons who, in his or her view, has or have denied, violated or infringed, or threatened to deny or infringe his or her rights or fundamental freedoms. If the respondent or respondents are of the view that other persons not before court should be enjoined as co-violators of rights and fundamental freedoms, then they can apply to the court for addition of those persons as co-respondents.” 34.The principle articulated in Mwilu is that joinder is anchored on necessity as disclosed from the pleadings and the material before the Court, and not on assumption or conjecture as to a party’s involvement. 35.The Court of Appeal in Civicon Limited v Kivuwatt Limited & 2 others [2015] eKLR clarified the distinction between a necessary and a proper party in the following terms:“Accordingly, a necessary party is one without whom no order can be made effectively, while a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceedings.” 36.The foregoing principles must be situated within the broader scheme of Rule 5 of the Mutunga Rules. Rule 5(a) permits a petitioner, where in doubt as to the proper respondent, to join multiple parties so that responsibility may be determined as between them. Rule 5(b) further provides that proceedings are not defeated by misjoinder or non-joinder, and that the Court retains jurisdiction to determine the dispute notwithstanding imperfections in party citation. Rule 5(d) then supplies the corrective jurisdiction once proceedings are underway. 37.As a whole, Rule 5 accommodates uncertainty at the point of institution and preserves the integrity of proceedings notwithstanding initial errors in party structure. 38.It is trite that the power to strike out a party is not engaged merely because responsibility is disputed or because liability may ultimately lie elsewhere. It is engaged only where it is plain that the party sought to be removed bears no discernible legal or factual connection to the issues for determination. Where that connection remains in contest, the matter is one for determination on the merits, not by interlocutory exclusion. 39.Measured against that standard, the inquiry turns on whether the Applicant’s absence would impede the Court from rendering an effective and complete determination of the issues in controversy. 40.The dispute disclosed in the Petition traverses questions of storm water flow and drainage within the suit property. 41.That broader context, however, is distinct from the Petitioners’ contention that the Applicant retains a continuing corporate role within the management company. 42.On the material presently before the Court, the assertion that the Applicant is part of the management company is not borne out by the record. The CR12 relied upon in the Petitioner’s replying affidavit does not reflect the Applicant in any capacity, whether as shareholder, director, or otherwise, and therefore does not support the assertion of continuing corporate control or interest following the transfer of the suit properties. 43.However, the absence of evidence linking the Applicant to the management company does not, in itself, determine the question arising under Rule 5(d). 44.The decisive inquiry is whether the material before the Court discloses a subsisting legal or factual nexus of such character that the dispute cannot be effectually and completely determined in the Applicant’s absence. 45.On the record presently before the Court, that threshold has not been met. The material exhibited show that the Applicant sold and transferred the suit properties to the Petitioners between 2020 and 2023. 46.Beyond its position as the original lessor of the parent parcel, no covenant, obligation, or continuing duty has been identified requiring the Applicant to undertake, maintain, redesign, or remedy the drainage infrastructure complained of after completion of the transactions. 47.The Petitioners’ grievance on drainage is undoubtedly substantial. Yet the existence of a grievance does not, without more, establish necessity under Rule 5(d) of the Mutunga Rules. 48.As the Court of Appeal observed in Civicon (supra), a necessary party is one without whom no effective order may be made, while a proper party is one whose presence is required for a complete and final determination of the questions in controversy. 49.Measured against those principles, the Applicant’s connection to the dispute remains historical rather than operative. The material before the Court does not demonstrate that the drainage complaints arise from any continuing legal obligation owed by the Applicant, nor that the relief sought cannot be effectually pursued against the 2nd Respondent who are presently charged with the management, maintenance, and administration of the estate. 50.The Petitioners may ultimately succeed or fail on the merits of their claims concerning the drainage system, but the present record does not disclose a basis upon which the Applicant’s continued participation may properly be regarded as necessary within the meaning of Rule 5(d) of the Mutunga Rules. 51.Accordingly, the application dated 8th October 2025 is allowed. The 1st Respondent/Applicant is hereby struck out with costs. It is so Ordered. DATED, SIGNED AND DELIVERED, VIRTUALLY AT THIKA THIS 16TH DAY OF JUNE 2026…………………………..J. M. ONYANGOJUDGEIn the presence of:Ms. Muthoni for Ms. Asli Osman for the 1st and 2nd Respondents/ApplicantsMr. Kamenju for the PetitionerCourt Assistant : Hinga