Morop Distributors (K) Limited & another v Nairobi County Government (City County of Nairobi) & 4 others (Environment and Land Case Civil Suit 178 of 2009) [2025] KEELC 7154 (KLR)

d. That the 2nd Plaintifi be enjoined as 6th Defendant in the suit. Alternative e. That the 2nd Plaintifi be ordered to furnish security for costs of this suit of ksh.2,000,000/= or such sum as this Honourable court may deem just and until the furnishing of security all further proceedings herein be stayed. f. That in the event of the 2nd Plaintifi failing to provide security as ordered within Twenty-one (21) days of the order, or such other time as this Honourable court may deem just, the 2nd Plaintifi’s case do stand struck out with costs. g. That the costs of the suit and application be awarded to the 1st Plaintifi/Applicant. 2. The application is premised on grounds on its face and on the supporting, and supplementary afidavits of Dickson Kipkemboi Boiywo a director of the 1st Plaintifi. He claims that the 1st Plaintifi is the legal owner of LR No. 209/13548, hereinafter referred to as the ‘suit plot’, pursuant to an allotment letter issued in 1996. Further, that at the time of allotment, the parcel had already been developed with a servant’s house and it started utilizing it, in 1996. He deposes that on 26th April 2009, the 1st Defendant sent its employees to serve an enforcement notice upon the 1st Plaintifi, ordering it to remove alleged illegal developments thereon and vacate the said plot, of which the 1st Plaintifi appealed against the said enforcement notice and filed the instant suit. 3. He insists that the 1st Plaintifi has never sold the suit plot to the 2nd Plaintifi, 2nd, 3rd or 5th Defendants and that it has never been served with any application seeking to join the 2nd Plaintifi to the suit. Further, that the 2nd Plaintifi ought to be joined as the 6th Defendant since it still holds the title to the suit plot, which was obtained fraudulently as determined in Criminal Court No. 956 of 2009, where the 2nd Plaintifi’s director and the 5th Defendant were convicted of forgery, with the said director also being convicted for the ofience of forcible detainer. He contends that, they did not Appeal the judgement in the matter thus they served the sentence imposed therein in full. He claims, after completing his sentence, the 2nd Plaintifi sneaked to join the suit and brought in the 5th Defendant without leave of the court and without notice to the 1st Plaintifi. Further, that it amended the plaint and further amended it. 4. He contends that the 2nd Plaintifi’s claim is completely difierent from the 1st Plaintifi’s claim, being that their cause of action does not relate thus the 2nd Plaintifi lacks locus standi to be part of this suit as a Plaintifi. 5. The application is opposed by the 2nd Plaintifi vide the replying afidavit of its director, John Gathama Maingi. He avers that the 1st Plaintifi does not have the right to take part in these proceedings since the 1st Plaintifi’s claim was dismissed by this Court on 13th April 2017. Further, upon reinstatement of the suit on the 2nd Plaintifi’s instance, the Court directed as follows in its orders of 13th November 2017: “ ……. the Plaintifis shall file and serve bound, paginated and indexed bundles of the pleadings, witness statements, documents and issues within 30 days. In default, the suit of any defaulting Plaintifi shall stand dismissed” 6. He avers that the aforementioned orders were served upon Triple OK Law Advocates who were then on record for the 1st Plaintifi but the 1st Plaintifi did not comply with the said orders thus its suit was duly dismissed. He also denies the allegation that a director of the 2nd Plaintifi was convicted of forgery and avers that in previous averments, the 1st Plaintifi expressly averred that it sold the suit land to the 5th Defendant who ultimately sold it to the 2nd Plaintifi. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7154/eng@2025-10-22 2

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7. He explains that the 2nd Plaintifi became a party to this suit through an amendment of the plaint by an advocate acting for both plaintifis on 19th April 2012, before close of pleadings and as such there was no requirement for leave, while further amendments made on 18th October 2018 were done with the leave of Court granted on 11th October, 2018. He contends that the 1st Plaintifi has endorsed the amendments to the plaint and points out that in an application dated 17th June 2021, it sought to further amend the further amended plaint dated 18th October 2018. 8. The application was canvassed by way of written submissions. Submissions 9. The 2nd Plaintifi did not file submissions. 10. In its submissions, the 1st Plaintifi reiterates that the 2nd Plaintifi has no locus standi to prosecute this case since it has no common interest with it. Further, that its claim is for an injunction and ownership of the suit plot while the 2nd Plaintifi ‘s claim is for compensation of sale contract proceeds against the 5th Defendant. It insists that the sale was investigated and in CMCC CR Case No. 956 of 2010, the transaction was found to have been fraudulent in a judgement entered on 19th December 2011, which was not appealed against thus the Plaintifi cannot claim proceeds of fraud. 11. It also reiterates that the 2nd Plaintifi did not adduce evidence to prove how it got joined to the suit or what common interest it has with it. Further, that the alleged application to reinstate suit, which resulted in orders issued on 13th November 2017 were not served on its advocates, Messrs Omangi Musangi & Co. Advocates, who have been its advocates on record since 1st July 2010. It reiterates that Triple OK Law Advocates might have assumed instructions on its behalf and without authority, proceeded to amend the plaint. 12. To support its averments, the 1st Plaintifi relied on the following decisions: Alberta Mae Gacie v Attorney General & 4 Others [2006] eKLR and DIM Agencies Limited v Kenya Airports Authority [2021] eKLR. Analysis and Determination 13. Upon consideration of the instant Notice of Motion application including the respective afidavits and submissions, at this juncture the only issue for determination is whether the 2nd Plaintifi’s amended plaints dated 19th April 2012 and 18th October 2018 respectively should be struck out. 14. The 1st Plaintifi seeks to strike out the 2nd Plaintifi’s amended plaint dated 19th April 2012 and further amended plaint dated 18th October 2018 on grounds that the same were filed without leave or notice and that the parties do not have a common cause of action. It points out that its claim relates to ownership of the suit plot, while the 2nd Plaintifi claims, sale proceeds from the 5th Defendant under a transaction allegedly declared fraudulent by the Court in CMCC CR Case No. 956 of 2010, where the 5th Defendant and the 2nd Plaintifi’s director were convicted of forgery. 15. The 2nd Plaintifi contends that it was joined by amendment before close of pleadings by Counsel on record for both Plaintifis hence it did not require leave to file Amended Plaint dated 19th April 2012. Further, that the 18th October, 2018 amendment was with leave of Court. It insists that the 1st Plaintifi’s suit was dismissed in 2017 thus it has no locus to file the application. 16. In response to the allegations, the 1st Plaintifi contends that its Counsel was not served with the alleged orders concerning reinstatement of suit and on the alleged amendments with leave. It avers that it https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7154/eng@2025-10-22 3

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has its own advocate on record since 2010 thus the alleged amendments instigated by Triple OK Law Advocates, may have been without its authority. 17. In this instance, the Court will interrogate the record to determine whether the 1st Plaintifi’s suit was dismissed, whether the 2nd Plaintifi’s amendments were made with leave and whether the 2nd Plaintifi has a reasonable cause of action. 18. The principles which guide the court on its power to strike out a suit are provided under Order 2 Rule 15 of the Civil Procedure Rules. While reiterating the said principles, the Court of Appeal stated as follows in Kivanga Estates Limited v National Bank of Kenya Limited [2017] KECA 591 (KLR); “ Striking out a pleading, though draconian, the court will, in its discretion resort to it, where, for instance, the court is satisfied that the pleading has been brought in abuse of its process or where it is found to be scandalous, frivolous or vexatious..” 19. On perusal of the Court record, I note on the 21st July, 2020, the Court noted that the 1st Plaintifi was not keen to prosecute this matter. Further, vide a Ruling delivered on the 26th May, 2022, the Judge directed the parties to file their pretrial bundles containing pleadings, comprehensive statements and documents in thirty (30) days. The Judge was categorical that the matter should be listed for hearing and shall not be adjourned at the instance of the 1st Plaintifi. The 1st Plaintifi thereafter sought for stay of proceedings vide its application dated the 26th July, 2022, claiming it has lodged an Appeal but the Judge dismissed the said application vide her Ruling dated the 26th January, 2023. The 1st Plaintifi has now sought to strike out the 2nd Plaintifi’s Amended and further Amended Plaints or in the alternative that the 2nd Plaintifi be directed to ofier security for costs. 20. I note way back in 2012, the 2nd Plaintifi was already a party to this suit, hence I find that the 1st Plaintifi’s is not being candid. I note this is a very old matter and from the Court record it seems the 1st Plaintifi has not been keen to proceed. On striking out of the 2nd Plaintifi’s Amended and further Amended Plaints, I opine that the same raises triable issues, which can only be determined once viva voce is adduced. Further, I find that for the further Amended Plaint dated 18th October 2018, the same was done with leave of court. It is my considered view that even if there was a related criminal case, which had been determined, the 2nd Plaintifi cannot be removed from the seat of justice. To my mind, I find that since the 2nd Plaintifi’s claim revolves around the suit plot, it is immaterial whether they share the said claim with the 1st Plaintifi or not. Further, it would be proper if this Court makes a final determination of all the issues in dispute revolving around the said suit plot once and for all. 21. In the foregoing, I find the instant Notice of Motion application unmerited and will dismiss it with costs to the 2nd Plaintifi. 22. I further order that the Court shall not entertain any further interlocutory applications but direct the matter to be set down for hearing forthwith. DATED SIGNED AND DELIVERED AT NAIROBI THIS 22ND DAY OF OCTOBER, 2025 CHRISTINE OCHIENG JUDGE In the presence of: Ms Chesaro for 1st Applicant/ 1st Plaintifi Kamau for 4th Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7154/eng@2025-10-22 4

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Omolo for 2nd Plaintifi Ms Awandu for 3rd Defendant / Respondent Bosek for 2nd Defendant Court Assistant: Joan https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7154/eng@2025-10-22 5

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