Akol v Namu & another

She further deponed that the Applicant is not the registered owner of the suit property and therefore no claim in the suit property is capable of being sustained as against the Applicant/2nd Defendant. 3. The Plaintiff filed a Replying Affidavit in opposition to the application. He deponed based on the Deed of Assignment dated 12th August 2024, the 2nd Defendant being the advocate representing both parties, was obligated to obtain and deliver the completion documents, including the Sectional Title over the suit property to the Plaintiff upon payment of the full purchase price. He deponed that despite his compliance on his part, the 2 nd Defendant did not release the title nonperformance of these obligations by the 2nd Defendant is central to the dispute, hence his joinder for being in breach of contract, his fiduciary duty and professional negligence 4. The Applicant filed a further affidavit reiterating his averments in the supporting affidavit 5. The application was canvassed by way of Written Submissions. The Applicants submissions are dated 13th April 2026 while those of the Respondents are dated 12th June 2026 Applicant’s submissions 6. The Applicant reiterated the arguments in their application, and submitted on one issue which was whether the 2 nd Defendant should be struck off from the suit. Counsel submitted that joinder of the unnecessary parties tends to prolong matters in court and for the determination of irrelevant factors and not the real issues in controversy relied on the provision of Order 1 rule 10(2) of the civil 2 ELCLC E207 OF 2025 R

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procedure rules and several case laws including the cases of Pizza Harvest Limited Vs Felix Midigo (2013) eKLR, Gidion Mbuvi kioko Vs Attorney General & 6 others (2012) eKLR. 7. Counsel submitted that the joinder of the Applicant is based of a deed of settlement that he was not party to and hence the doctrine of privity of contract comes in. He placed reliance in the case of Genga vs APA Insurance Kenya Limited (2024) KEHC 11950(KLR). That an advocate acted solely within his scope of their professional mandate does not mean they assume personal liability for the obligations of the client. Respondent submissions 8. In rebuttal submissions the Respondent submitted on the following Whether the suit raises reasonable cause of action as against the Applicant/2nd Defendant 9. Counsel relied on Order 1 Rule 10(2) of the Civil Procedure Rules that empowers the Court to retain any party whose presence before the Court is necessary for the effectual determination of the suit. He submitted that the pleadings raised substantial questions regarding the role played by the 2nd Defendant in the conveyancing transaction and its alleged failure to facilitate completion despite full payment of the purchase price by the Applicant and hence a necessary party. That the said questions could only be resolved after production of the transaction documents and other relevant documents as between the parties and oral evidence at trial. On whether the 2 nd Defendant was improperly joined he relied on the case of Pravin Bowry Vs John 3 ELCLC E207 OF 2025 R

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Ward & Another [2015] eKLR emphasizing that the Applicant was properly joined having been involved in the completion process and failing to meet its obligations as in the Deed of Assignment. Analysis and determination 10. I have reviewed and considered the application, the Supporting Affidavit and the Replying Affidavit and I have also considered the submissions made on behalf of the parties and find the following issue for determination; Whether the Applicant has been improperly mis joined in the suit 11. The law on parties to a suit is codified in Order 1 of the Civil Procedure Rules. As to who may be joined as Defendants Order 1 Rule 3 provides as follows: -All persons may be joined as Defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise. 12. A Court is empowered to strike out a party improperly joined to a suit by virtue of Order 3 Rule 10 of the Civil Procedure Rules which states [Order 1, rule 10](2) ‘The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant, be struck out, and that the name of any person who ought to have been 4 ELCLC E207 OF 2025 R

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joined, whether as Plaintiff or Defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.’’ 13. The Court of Appeal in JMK -Vs- MWM & Another [2015] eKLR remarked on the foregoing provision in the following manner: Order 1 Rule (10) (2) of the Civil Procedure Rules empowers the court, at any stage of the proceedings, upon application by either party or suo moto, to order the name of a person who ought to have been joined or whose presence before the court is necessary to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit, to be added as a party. Commenting on this provision, the learned authors of Sarkar’s Code of Civil Procedure (11th Ed. Reprint, 2011, Vol. 1 P. 887), state that: The section should be interpreted liberally and widely and should not be restricted merely to the parties involved in the suit, but all persons necessary for a complete adjudication should be made parties. 14. In the case of Werrot and Company Ltd & Others Vs Andrew Douglas Gregory & Others [1998] eKLR it was held that “For determining the question of who is a necessary party there are two tests; a. there must be a right to some relief against such a party in respect of the matter involved in the proceeding in question and b. it should not be possible to pass an effective decree in the absence of such a party.’’ 5 ELCLC E207 OF 2025 R

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15. The Applicant has relied on the doctrine of privity of contract. The principle of privity of contract was emphasized by the Court of Appeal in Eastern Produce Kenya Limited Vs Rongai Workshop & Transporters Limited & another [2024] KECA 747 (KLR) where it was held that a contract cannot be enforced by or against a nonparty. The Plaintiff on the other hand has indicated that the Applicant is not sued out of contractual obligations but out of professional negligence and breach of fiduciary duty relying on clause 6.2 of the deed of assignment that required the advocate to release the sectional title to the Plaintiff upon completion. 16. In my opinion, and upon acting very cautiously and carefully and after considering all facts of the case without embarking upon the merits of the suit, I find that indeed given the history of the matter herein in and although the Applicant was not privy to the contract herein between the parties, yet its participation in being the advocate both for the Plaintiff and the 1st Defendant places a duty of care to both parties. The Applicant being the one tasked with releasing the sectional title to the Plaintiff upon completion by payment of purchase price, which completion has not been disputed, makes its presence before the court necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit. Final disposition The upshot of the foregoing is that I make the following order; 6 ELCLC E207 OF 2025 R

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i. The Application dated 3rd June 2025 is accordingly dismissed for lack of merit ii. Costs shall be in the main cause. It is so ordered. DATED, SIGNED and DELIVERED via e-mail at NAIROBI on this 15th day of July 2026. MOHAMMED N. KULLOW JUDGE 7 ELCLC E207 OF 2025 R

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