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ELCDismissedNot stated in judgment (Notice of Motion dated 13th October 2020)· [2021] KEELC 2279 (KLR)

Kepha Marita Okemwa suing as the personal representative of the estate of Johnsom Okemwa Nyakundi v Mega Choice Limited & another [2021] KEELC 2279 (KLR)

Environment and Land Court
21 July 2021
JOJ. M. Onyango
1,207 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to remove KCB from a land dispute, ruling that fraud and due diligence claims against a bank must be tested at trial, not decided early.

What this practically means

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Executive summary

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The 2nd Defendant, a bank that registered a legal charge over land parcel KISII MUNICIPALITY/BLOCK/11/16 as security for a Kshs 9,000,000 loan advanced to the 1st Defendant, applied by Notice of Motion dated 13th October 2020 to have its name struck out from the suit. Its Branch Manager, Olga Otani, averred that the loan had been fully repaid and the bank retained no interest in the property, the obligation to discharge the charge resting with the 1st Defendant. The Plaintiff opposed, averring that the charge remained in force, that the bank was obliged to have conducted due diligence before taking the charge, and that his claim was one of collusion making both defendants jointly and severally liable; the 2nd Defendant had already filed a defence. The court framed a sole issue: whether the 2nd Defendant had been wrongfully enjoined. Relying on Order 1 rules 9 and 10(2) of the Civil Procedure Rules, and applying DT Dobie & Company (K) Ltd v Joseph Mbaria Muchina & Another, Onyango J held that the striking-out power must be exercised cautiously without embarking on the merits. Whether the bank exercised due diligence or colluded with the 1st Defendant to defraud the Plaintiff was an evidentiary matter for trial, and the allegations could be controverted by the defence already on record. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether the 2nd Defendant was a necessary party whose name should be struck out

Holding

The application was dismissed; allegations against the 2nd Defendant (collusion and failure of due diligence) require trial and cannot be summarily determined

Reasoning

Order 1 rules 9 and 10(2) CPR permit striking out of improperly joined parties, but the discretion must be exercised with caution and on reason and fairness. Whether the chargee conducted due diligence or colluded with the 1st Defendant is an evidentiary question reserved for trial; the 2nd Defendant had already filed a defence, so the suit should proceed against all parties.

p. 2

Legal principles established

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  • The power to strike out a party must be exercised with caution and without embarking on the merits of the case
  • The court may strike out an improperly joined party, acting according to reason and fairness

Court orders

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  1. 1.The 2nd Defendant's application to be struck out from the suit is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rule 9
  • Civil Procedure RulesOrder 1 rule 10(2)

Cases cited (1)

  • DT Dobie and Company (K) Ltd vs Joseph Mbaria Muchina & Another
    (1982) KLR 1
Jurisdiction invoked
Original jurisdiction under the Civil Procedure Rules, Order 1 rules 9 and 10(2)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kepha Marita Okemwa suing as the personal representative of the estate of Johnsom Okemwa Nyakundi v Mega Choice Limited & another [2021] KEELC 2279 (KLR)", Case Analysis (2021). Not stated in judgment (Notice of Motion dated 13th October 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2279/eng@2021-07-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.