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Case Brief · caselaw.co.ke
ELCDismissedCivil Case 9 of 2021· [2022] KEELC 13446 (KLR)

Kanziwa Limited v Kipkisui & 4 others

Environment and Land Court
11 October 2022
FNFM Njoroge
1,358 words in judgment
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The bottom line

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A Kenyan court refused to remove two defendants from a land dispute, ruling that fraud claims against them must be tested at trial, not struck out early.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (FM Njoroge, J) determined a Notice of Motion dated December 3, 2021 by the 4th and 5th defendants seeking their own removal from the suit under Order 1 rule 10(2) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. They deposed that they were agents instructed by the 2nd defendant to source buyers for the suit property, were agents of a disclosed principal, were not registered or beneficial owners, had never controlled or used the properties, and that their presence was unnecessary and would delay the suit. The plaintiff opposed through Grounds of Opposition, asserting that fraud, forgery, impersonation and trespass were pleaded against the 4th and 5th defendants, with injunction and damages sought, and that the principal/agent relationship does not shield a person from proceedings arising from fraudulent or illegal activities. Neither party filed submissions. Framing the sole issue as whether the 4th and 5th defendants should be struck out, the court applied the principle that only the plaint is examined for a semblance of a cause of action, citing China Bente Industry (K) Ltd and DT Dobie. It held that the plaint discloses claims against the applicants, that their agency and the apportionment of liability with their principal could only be tried if they remained parties, and that their admission of agency narrows the issues. The application was dismissed with costs and the suit fixed for mention on November 1, 2022 for further directions.

Key legal issues

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01

Whether the 4th and 5th defendants, claiming to be agents of a disclosed principal, should be struck out from the suit

Holding

Application dismissed; the plaint discloses a semblance of cause of action against them and their presence is necessary to determine agency and apportion liability without multiplying litigation

Reasoning

The court applied Order 1 rule 10(2) and the China Bente test: only the plaint is examined for a semblance of cause of action. The plaint pleads fraud, forgery, impersonation and trespass against the 4th and 5th defendants and seeks injunction and damages. Their agency and the scope of liability between them and their principal can only be tried if they remain parties; their admission of agency narrows issues and aids expeditious disposal.

p. 3

Legal principles established

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  • In determining whether a suit discloses a reasonable cause of action against a party, the court takes cognizance of the plaint only and assesses whether it exhibits any semblance of a cause of action
  • The power to strike out a party should be exercised with caution and without embarking on the merits

Court orders

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  1. 1.The 4th and 5th defendants' application dated December 3, 2021 is dismissed with costs
  2. 2.The suit shall be mentioned on November 1, 2022 for further directions

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rule 10(2)
  • Civil Procedure ActSection 3A

Cases cited (2)

  • China Bente Industry (K) Ltd v Seline J Comen & another
    [2022] eKLR

    In assessing cause of action against a party, the court considers only the plaint and whether it exhibits a semblance of a cause of action

  • DT Dobie and Company (K) Ltd vs Joseph Mbaria Muchina & Another
    (1982) KLR 1

    Power to strike out must not be used to embark on the merits, which are reserved for the trial judge

Jurisdiction invoked
Order 1 rule 10(2) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kanziwa Limited v Kipkisui & 4 others", Case Analysis (2022). Civil Case 9 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13446/eng@2022-10-11

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