Mulwa & 3 others (Suing as the Current Chairman, Secretary and Treasury of Kasuitu Plot Owners Self Help Group) v Fundi (Sued as a Legal Representative of the Estate of Josephat Nzioka Wambua (Deceased)) & 5 others (Environment and Land Case Civil Suit 74 of 2009 & 310 of 2017 (Consolidated)) [2025] KEELC 3451 (KLR)
The bottom line
#A Kenyan court struck out an application by people who renamed themselves 'defendants' after being denied joinder, confirming strangers cannot seek reliefs in a case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the alleged defendants are strangers in these proceedings.
- 2.Whether the orders of 21/07/2022 should be set aside.
- 3.Whether the consent dated 25/07/2022 and Charles Fundi's notice to act in person should be expunged from the record.
- 4.What orders should be issued, including an order as to costs?
Key legal issues
#Whether the alleged defendants are strangers in these proceedings
They are strangers; having been declined joinder as interested parties, their purported self-description as 'defendants' cannot confer standing and their application is incompetent
The court had already dismissed their joinder application on 20/09/2023. Parties accrue rights and responsibilities which strangers cannot enjoy. Renaming themselves as 'defendants' without joinder was 'self-metamorphosis' amounting to abuse of the court process. Reliance placed on the Supreme Court decision in Communications Commission of Kenya v Royal Media Services. It was therefore unnecessary to decide the remaining issues.
Whether the remaining prayers (setting aside orders, expunging consent and notice to act in person) should be granted
Not determined, as the motion failed on the threshold standing issue
Having found the applicants to be strangers whose application was incompetent, the court held it unnecessary to consider the other issues. It also noted that anyone questioning Charles Fundi's limited grant may move the probate court to revoke it.
Legal principles established
#- A stranger to court proceedings cannot seek reliefs in a suit or application; non-parties who disguise themselves as defendants abuse the court process
- Where a person not initially a party is enjoined as an interested party, they cannot seek to strike out the suit on grounds of defective pleadings
Court orders
#- 1.The notice of motion dated 18/10/2023 is struck out with no orders as to costs.
- 2.Unless with leave of the court, no further applications shall be entertained in this matter.
- 3.Directions on the application dated 13/02/2025 to be made on 23.06.2025.
- 4.The plaintiffs in this matter to serve the plaintiffs in the consolidated suit with a mention notice.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1, 1B and 3A of the Civil Procedure Act and Order 22 Rule 51 of the Civil Procedure Rules
- Consolidated with
- Environment & Land Civil Case 310 of 2017
Relief refused
#Setting aside orders of 21/07/2022
The applicants are strangers to the proceedings; the motion was struck out as incompetent without reaching the remaining issues
Expunging the consent dated 25/07/2022 and Charles Fundi's notice to act in person
Not considered because the application was incompetent
Substitution of new Kasuitu officials for deceased defendants
Election of new group officials does not vest a real stake in the applicants
Costs
No orders as to costs - the motion was struck out with no orders as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
a stranger to court proceedings cannot be heard to seek prayers or reliefs in an application such as this one or in a suit.
the alleged defendants have abused the court process, and this court will not entertain their actions.
That the notice of motion dated 18/10/2023 is hereby struck out with no orders as to costs.
Unless with leave of the court, no further applications shall be entertained in this matter.
Issues in the judgment
#Motion is dated 18/10/2023 but the background states the law firm filed the motion shortly after the 20/09/2023 joinder ruling was delivered, a date discrepancy of about a month
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulwa & 3 others (Suing as the Current Chairman, Secretary and Treasury of Kasuitu Plot Owners Self Help Group) v Fundi (Sued as a Legal Representative of the Estate of Josephat Nzioka Wambua (Deceased)) & 5 others (Environment and Land Case Civil Suit 74 of 2009 & 310 of 2017 (Consolidated)) [2025] KEELC 3451 (KLR)", Case Analysis (2025). Environment & Land Civil Case No. 74 of 2009 (with consolidated Environment & Land Civil Case 310 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3451/eng@2025-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.