Njubi v Nairobi City Water and Sewerage Company (Environment & Land Case E313 of 2022) [2023] KEELC 600 (KLR)
The bottom line
#Nairobi Water failed to get its name struck out of a trespass suit; the court ruled a sole defendant cannot claim misjoinder and factual disputes belong at trial.
What this practically means
#Executive summary
#Key legal issues
#Whether Order 1 rule 10(2) CPR 2010 (joinder of interested/necessary parties) was available to the defendant
Not available; the defendant was sued as a substantive defendant, not joined as an interested or necessary party, so submissions on joinder of interested parties were misplaced
The court found it common ground that the defendant was neither admitted nor joined as an interested party. The defendant was sued as the sole substantive party against whom the named reliefs were sought, rendering elaborate case law on joinder of interested parties inapposite to the application.
Whether the plaint disclosed a reasonable cause of action against the defendant
Yes; the plaint alleged trespass by the defendant on the plaintiff's property, disclosing a factual situation entitling the plaintiff to pursue a remedy, and sufficiency of the evidence is for the trial court
Relying on cause-of-action definitions drawn from Kigwor Company Limited v Samedy Trading Company Limited and earlier English authorities, the court held that a cause of action is a factual situation entitling one person to obtain a remedy against another. The plaintiff alleged trespass by the defendant, so there was something for the court to interrogate at trial.
Whether the defendant's name should be struck out
No; the application was in substance one to strike out the suit, improperly mounted under Order 1 rule 10(2) rather than Order 2 rule 15, and striking out would drive the plaintiff from the seat of justice on arguable factual issues
Striking out the only defendant's name would leave no suit. Such an application should have been brought under Order 2 rule 15 CPR 2010. Guided by DT Dobbie & Company Ltd v Joseph Mbaria Muchina, the court held that inherent jurisdiction to strike out is sparingly exercised and a claim should not be struck out where factual controversies fit for cross-examination exist.
Legal principles established
#- A sole defendant cannot invoke the concept of misjoinder; misjoinder presupposes more than one defendant
- An interlocutory application cannot usurp the function of the trial court by examining the sufficiency of evidence; factual controversies must await plenary hearing
- Where the only defendant's name is struck out, there would be no suit; such an application must be judged as one to strike out a suit
- A plaintiff should not be driven from the seat of justice unless the case is unarguable
Court orders
#- 1.The notice of motion application dated October 27, 2022 be and is hereby dismissed
- 2.Costs of the application to the plaintiff/respondent
- Jurisdiction invoked
- Original civil jurisdiction (not expressly stated; application brought under the Civil Procedure Rules, 2010, including Order 1 rule 10(2), Order 1 rule 9 and Order 2 rule 15)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njubi v Nairobi City Water and Sewerage Company (Environment & Land Case E313 of 2022) [2023] KEELC 600 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/600/eng@2023-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.