Margaret Wamucii Muchogo alias Margaret Wamucii Masaku v Embakasi Ranching Company Limited & 7 others

RULING 1. By a Notice of Motion dated 12 th October 2025, brought under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 1, Rule 3, Order 15 Rule (1), (a), (b), (c) and (d), Order 7 Rule 3 and 12 and Order 51 Rule 3 of the Civil Procedure Rules, the 3rd Defendant/Applicant seeks the following orders: a. THAT the 2nd Defendant's further amended statement of defence be struck out on account of the counterclaim raised against the 3rd Defendant. b. THAT the Court be pleased to direct the exclusion of the counterclaim as raised by the 2nd Defendant as against the 3rd Defendant. c. THAT the costs be awarded to the Applicant. 2. The application is based on the grounds appearing on its face together with the supporting affidavit of Willis Wetaba Nanjendo Advocate, sworn on even date. THE APPLICANT’S CASE 3. The deponent averred that the 3rd Defendant is unable to respond to the defence and counterclaim raised by the 2 nd Defendant. He argued that the counterclaim is brought against the Plaintiffs in relation to other parties, not solely against the 3rd and 8th Defendants. He further averred that nothing prevents the 2nd Defendant from filing a separate suit and seeking an order that the two matters be heard ELC CASE NO. E120 OF 2024 2

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together. He also argued that the counterclaim is intended to confuse the issues and distract the 3 rd Defendant from defending the suit. In conclusion, he urged the Court to allow the application as prayed. THE 2ND DEFENDANT’S CASE 4. The 2nd Defendant filed grounds of opposition dated 12 th December in response to the application. He asserts that the application is bad in law and an abuse of the Court process. He further asserts that the 3 rd Defendant has filed and served a defence to the 2 nd Defendant’s counterclaim dated 22nd May 2025, thereby rendering the application an academic exercise. He argued that the counterclaim makes a single claim against the 3rd and 8th Defendants in accordance with Order 1 Rule 3 of the Civil Procedure Rules. He also argued that the 8 th Defendant is properly joined in the suit through the counterclaim. He contended that framing a joint counterclaim against the 3 rd and 8th Defendants is consistent with Order 1 Rule 8, which allows proceedings to be brought or defended by or against one or more persons with a common interest, to avoid multiplicity of suits. He contended that any alleged misjoinder or nonjoinder does not defeat the suit or counterclaim and that no prejudice will be caused to the 3rd Defendant, who is aware of the claim. 5. In conclusion, he urged the Court to dismiss the application with costs. ELC CASE NO. E120 OF 2024 3

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6. The application was canvassed by way of written submissions. THE 3RD DEFENDANT’S SUBMISSIONS 7. The 3rd Defendant filed his submissions dated 4 th February 2026. 8. On behalf of the 3rd Defendant, Counsel submitted that the Plaintiff and the 3rd Defendant are not named as parties to the Counterclaim, whereas the 2nd and 5th Defendants have not named themselves as Plaintiffs in the Counterclaim. It was also submitted that the Plaintiff is not a Defendant in the Counterclaim, raising questions about the proper constitution of the Counterclaim. Counsel argued that no nexus exists between the claim against the 3 rd Defendant and the Plaintiff sufficient to support a Counterclaim. 9. Counsel submitted that the 3rd Defendant has not been named as a Defendant in the counterclaim, and that the 2 nd and 5th Defendants have not been named as Plaintiffs in the counterclaim. Counsel argued that the 3rd Defendant is unable to respond to the 2nd and 5th Defendants' counterclaim. It was further argued that the 2 nd and 5th Defendants' counterclaim is irregularly and unconstitutionally raised against the 3 rd Defendant and prejudices him, as he has yet to respond. 10. In conclusion, Counsel urged the Court to strike out the pleadings with costs. THE 2ND DEFENDANT/APPLICANT’S SUBMISSIONS ELC CASE NO. E120 OF 2024 4

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11. The 2nd Defendant filed its submissions dated 4 th May 2026. 12. On behalf of the 2nd Defendant, Counsel relied on the grounds of opposition in support of his submissions. Counsel submitted that the present application purports to raise a technical procedural objection, rather than a substantive objection, as contemplated by Rule 12. Counsel argued that suits are not to be defeated by misjoinder or non-joinder. 13. Counsel further submitted that the 2nd Defendant’s counterclaim arises from the same land dealings, titles and transactions that the Plaintiff has challenged in the Plaint. Counsel argued that Order 7 Rule 8 contemplates counterclaims that raise questions between the Defendant and the Plaintiff, together with any other person or persons. To support this argument, Counsel relied on David Joseph Gichuhi Gichamba & another v Jane Waceke Mwangi & 4 others. 14. Counsel urged the Court not to strike out the counterclaim on the basis of the alleged defects, arguing that Order 7 Rule 8 provides that persons joined to a counterclaim are served with the defence containing the counterclaim. It was submitted that the 3rd Defendant has been served and has responded by way of the present application. Counsel further submitted that the 3 rd Defendant has full knowledge of the allegations levelled ELC CASE NO. E120 OF 2024 5

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against him and has the right to file a defence to the counterclaim. 15. It was submitted that the 3rd Defendant had not demonstrated that he would suffer any prejudice as a result of the alleged defect. 16. In conclusion, Counsel urged the Court to allow the application as prayed. ANALYSIS AND DETERMINATION 17. Having considered the application, the respective affidavits and the rival submissions, the following issues arise for determination: a) Whether the 2nd Defendant’s counterclaim is properly constituted; and b) Whether the 2nd Defendant’s further statement of defence should be struck out. 18. The 3rd Defendant contends that the counterclaim is improperly constituted as the Plaintiff and the 3 rd Defendant are not properly named as parties to the counterclaim, and that the 2nd and 5th Defendants have not named themselves as Plaintiffs in the counterclaim. It was further argued that there is no nexus between the Plaintiffs' claim and the counterclaim, and that the counterclaim, as framed, prejudices the 3rd Defendant’s case. 19. The 2nd Defendant contends that the counterclaim presents a single claim against the 3rd and 8th Defendants in accordance with Order 1 Rule 3 and Order 7 Rule 8 of the Civil Procedure ELC CASE NO. E120 OF 2024 Rules. It further submits that the 6

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counterclaim arises from the same land dealings, titles and transactions that form the subject of the Plaintiff’s claim. 20. The counterclaim dated 17th April 2025 seeks, among other reliefs, an eviction order against the 3rd and 8th Defendants, a permanent injunction, and general damages for trespass. 21. Order 7 Rule 8 provides for a counterclaim that raises questions between the Defendant and the Plaintiff, together with any other person or persons. The provision does not confine a counterclaim exclusively to the Plaintiff. Consequently, a counterclaim is not rendered incompetent merely because the relief sought is against persons other than the Plaintiff, provided the requirements of the Rules are met. 22. In the present case, the Court notes that the 2 nd Defendant has expressly sought substantive relief against the 3 rd and 8th Defendants. The Court is therefore not persuaded that the counterclaim is incompetent merely because parties other than the Plaintiff are involved. 23. Regarding the alleged defect in the description of the parties, the Court must consider whether the defect goes to the substance of the counterclaim or constitutes a procedural irregularity that can be addressed without defeating the substantive dispute. 24. The Court notes that the counterclaim relates to the same land and transactions that form the subject matter of the Plaintiff’s suit. Accordingly, I find there is a nexus between ELC CASE NO. E120 OF 2024 7

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the matters, warranting their determination within the same proceedings. 25. In light of the foregoing, I find that the 2 nd Defendant's counterclaim is not rendered incompetent merely because it raises issues involving the 3rd and 8th Defendants, in addition to the Plaintiff. 26. Regarding the second issue, the Applicant seeks to have the 2nd Defendant’s further amended statement of defence struck out on account of the counterclaim contained therein. The Applicant contends that the counterclaim is confusing, improperly constituted and prejudicial to its defence. 27. The Court has already found that the counterclaim is not incompetent merely because it raises claims against the 3 rd and 8th Defendants. 28. The Court is called upon to determine whether the alleged procedural defects warrant striking out the further amended statement of defence. 29. The Court is mindful that striking out a pleading is a drastic remedy. In D.T.Dobie & Copie(Kenya) Ltd v Muchina & Another (1982)KLR 1, the Court emphasised that a pleading ought not to be summarily struck out unless it is plainly and hopelessly incapable of being salvaged by amendment. 30. The 3rd Defendant contends that he is unable to respond to the counterclaim because it fails to properly identify the parties against whom it is brought. He further ELC CASE NO. E120 OF 2024 8

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contends that there is no nexus between the claim in the plaint and the counterclaim. 31. The 2nd Defendant contends that the counterclaim arises from the same land dealings, title and transactions. 32. The record shows that the 3 rd Defendant filed a statement of defence to the amended plaint. It does not establish that he filed a defence to the 2nd Defendant’s counterclaim. The issue is not whether the 3 rd Defendant has filed a defence to the counterclaim, but whether the counterclaim is defective to the point that it ought to be struck out. Having considered the pleadings, I find that the alleged defects do not warrant striking out the further amended statement of defence. 33. Accordingly, I find that the application is not merited and is hereby dismissed with costs. RULING SIGNED, DATED, MICROSOFT TEAMS THIS AND DELIVERED VIA 25TH DAY OF SEPTEMBER, 2026. ……………………………………. HON. T. MURIGI JUDGE IN THE PRESENCE OF: Mwangi D K for the Plaintiff/Respondent Vena – Court assistant ELC CASE NO. E120 OF 2024 9

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