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ELCDismissedELC/e070/2022

Kiruti & another v Gitau & 4 others (Environment and Land Case 70 of 2022) [2026] KEELC 2929 (KLR)

Environment and Land Court
13 May 2026
1,565 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to remove Equity Bank from a land dispute, ruling claims against a former chargee survive even after charges are discharged.

What this practically means

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Executive summary

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The Environment and Land Court (M.D. Mwangi, J) delivered this ruling on the 5th Defendant's Notice of Motion dated 4th December 2025, brought under Order 2 Rule 15 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking to strike out the proceedings against it on the ground that the suit discloses no reasonable cause of action, plus costs. Equity Bank (Kenya) Limited argued that its role was strictly that of a chargee securing facilities advanced to the 2nd Defendant, that the facilities were repaid in full leading to discharge of the charges and release of original titles, and that it holds no proprietary, beneficial or equitable interest in the suit parcels. The 1st and 2nd Plaintiffs, the administratrix and administrator of the estate of the late Mutarakwa Kiruti Lepaso, opposed through Grounds of Opposition and a Replying Affidavit, asserting specific pleaded allegations of breach of statutory duty and negligence against the Bank in its dealing with the suit properties, including any auction or sale. The court framed two issues: whether the 5th Defendant is a necessary party and whether the Further Amended Plaint discloses a reasonable cause of action against it. Applying the D.T. Dobie threshold and the Amon v Raphael Tuck test for necessary parties, the court held that the Bank's historical involvement as chargee forms an integral link in the challenged chain of transactions, that allegations of negligence and statutory breach attach to past conduct and survive discharge of the charges, and that these raise intensely factual, triable questions only resolvable at full trial. The Motion was dismissed in its entirety, with costs of the application awarded to the 1st and 2nd Plaintiffs, and the matter directed to proceed to full trial against all parties on record.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 5th Defendant is a necessary party to this suit
  2. 2.Whether the Further Amended Plaint discloses a reasonable cause of action against the 5th Defendant to warrant its continued participation in these proceedings

Key legal issues

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01

Whether the suit discloses no reasonable cause of action against the 5th Defendant under Order 2 Rule 15(1)(a)

Holding

The Further Amended Plaint discloses a reasonable cause of action; allegations of breach of statutory duty and negligence against the Bank are substantive triable issues

Reasoning

The Bank's historical involvement as chargee forms an integral link in the challenged chain of transactions. The Respondents specifically pleaded breach of statutory duty and negligence against it concerning its handling of the suit properties while the charges subsisted. Its innocence and discharge of interest are matters of defence to be tested at trial, not grounds for summary striking out, per the D.T. Dobie threshold.

p. 4
02

Whether the 5th Defendant is improperly joined / not a necessary party under Order 1 Rule 10(2)

Holding

The 5th Defendant is a necessary party whose presence is required for the court to completely and effectually adjudicate on the validity of the impugned transactions

Reasoning

Applying the Amon v Raphael Tuck test, the Plaintiffs plead substantive claims against the Bank's past conduct as chargee. Its presence is necessary to interrogate the validity of transactions that occurred while the properties were encumbered in its favour, so it is not improperly joined.

p. 4

Legal principles established

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  • The power to strike out pleadings is discretionary and draconian and must be exercised with utmost circumspection; a suit should not be summarily dismissed if it shows even a semblance of a cause of action curable by amendment
  • A necessary party is one against whom a direct right to relief exists, or without whom an effective decree cannot be issued
  • Allegations of negligence and statutory breach by a former chargee attach to past conduct and are not extinguished by subsequent discharge of the charge; they raise triable issues fit only for full trial

Court orders

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  1. 1.The 5th Defendant/Applicant's Notice of Motion dated 4th December 2025 dismissed in its entirety
  2. 2.Costs of the application awarded to the 1st and 2nd Plaintiffs/Respondents
  3. 3.The matter to proceed to trial for a full hearing on its merits as against all parties on record

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Order 2 Rule 15 and Order 51 Rule 1 of the Civil Procedure Rules, alongside Sections 1A, 1B, and 3A of the Civil Procedure Act

Relief refused

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Striking out of the 5th Defendant from the proceedings

The Further Amended Plaint discloses a reasonable cause of action against the 5th Defendant and the 5th Defendant is a necessary party

p. 4

Costs of the suit against the 1st and 2nd Plaintiffs

Only the costs of the application were awarded, and those to the Plaintiffs

Costs

The costs of this application are awarded to the 1st and 2nd Plaintiffs/Respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The 5th Defendant/Applicant's Notice of Motion dated 4th December 2025 be and is hereby dismissed in its entirety.
p. 4final orders - dismissal of striking-out application
This matter shall proceed to trial for a full hearing on its merits as against all parties on record.
p. 4final orders - matter to proceed to trial
The 5th Defendant's historical involvement with the titles forms an integral link in the chain of transactions challenged by the Plaintifis.
p. 3former chargee's necessary joinder
No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment.
p. 3D.T. Dobie threshold for striking out pleadings

Issues in the judgment

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minor

Application dated 4th December 2025 but response and judgment dated 2026, while the suit number is ELC/e070/2022; dates appear internally inconsistent with the case year

minor

The quoted text of Order 2 Rule 15(1)(a) is truncated in the judgment

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, "Kiruti & another v Gitau & 4 others (Environment and Land Case 70 of 2022) [2026] KEELC 2929 (KLR)", Case Analysis (2026). ELC/e070/2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2929/eng@2026-05-13

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