Bassi v Emoru Garite Enterprise Limited & 3 others

4. The Applicant further deponed that the Plainti/ Respondent alleges that the reason as to why the Applicant/2nd Defendant is enjoined in the said cause is due to the registration of a restriction over the suit parcel in his favour on 13th April 2023. 5. In addition, that at the time of the registration of the restriction, the suit parcel of land was registered in favour of Hetunach Contractors Company Limited and at the time of the said registration it was the view of the Applicant/ 2nd Defendant and belief that the suit properties were correctly the assets of the 1st defendant. 6. It is the Applicant’s claim that sometime in 2023 he was approached by persons who introduced themselves as agents of the 1st Defendant who intimated that they wanted to dispose the suit properties. 7. Consequently, basing on the proprietorship records in custody of the land registrar Uasin Gishu County there was no cause for alarm or reason to doubt the legitimacy of the proprietorship. 8. The Applicant herein deponed that he transacted with the agents of the 1st defendant in honest belief that they were in a position to cause the suit properties to be transferred on the transaction materializing. 9. He also deponed that the agents of the said 1st defendant shortly thereafter went unresponsive and were unreachable. 10. That in order to protect his interests on the suit properties, he caused a restriction to be registered. 11. He therefore maintained that the registration of his restriction was a safety net that the 1st defendant would have to notify and/or engage him before transacting on the suit properties to protect his interest. 12. The Applicant/ 2nd defendant deponed that since the year 2023 to date he has never been notied by the Land Registrar that any person challenged the restriction in his favour and he was required to attend a hearing before the land registrar. 13. In addition, his advocate informed him that the land registrar has statutory powers to place and remove a restriction on being prompted. 14. The Applicant did depone that he is aware that no person ever made an application calling for the removal of the restriction registered in his favour. 15. Therefore, his Advocate on record did advise him that the doctrine of exhaustion of administrative remedies dictates that any person aggrieved by the placement of his restriction ought to rst move the land registrar for the lifting of the restriction. 16. He further deponed that he is aware that the suit has been prematurely led and the said Plainti has not exhausted the available administrative remedies that any person aggrieved by the placement of his restriction ought to rst move the land registrar for the lifting of the restriction. 17. In addition, the Applicant deponed that the said Plainti has never approached him nor demand to have the restriction lifted. 18. It is further deponed by the Applicant that he reached out to the plainti to negotiate an out of court settlement of this dispute on being served with the pleading herein. 19. It is his claim, that the negotiations were progressing seamlessly until the plainti’s advocate intervened and caused the engagement to terminate before a compromise was struck. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6103/eng@2026-10-01 2

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20. Consequently, the Applicant/ 2nd Defendant herein has opted to voluntarily withdraw the restriction registered in his favour and he no longer has any interest over the suit properties upon the withdrawal of the said restriction. 21. He deponed that the plainti herein seeks the withdrawal/lifting of the restriction in his favour which has already taken place and the said Plainti has no cause of action against him. 22. It is the Applicant’s claim that it is prudent that his name be struck out of the proceedings pronto and none of the parties will be prejudiced in any way by the removal of his name from the proceedings. 23. In conclusion, he urged the court to allow the said application to narrow down on the disputed facts for the speedy resolution of the dispute and costs be borne by the plainti. 24. The application was opposed. The Plainti herein led a Replying Adavit sworn and dated 20th May, 2026 in response to the claims made against him. 25. The Plainti herein averred that he is the registered proprietor of all the parcels of land known as Eldoret Municipality/ Block 14/476 and 14/478 having been registered as such on 10th June, 2005 and Certicate of leases issued. 26. The Plainti further averred that at the time of ling the said case on 29th April, 2025, there existed a cause of action against the Applicant/2nd Defendant on account of the restriction he registered against the titles on 13th April 2023, claiming purchasers’ interest. 27. It is his contestation that the facts giving raise to the institution of the suit are that in or about the 30th August, 2022, he applied for a Certicate of Ocial Search over Eldoret Municipality/ Block 14/476 and 478 at the Lands Oce-Eldoret as a routine to ascertain the status of the properties. 28. He averred that the 4th Defendant/Respondent thereafter issued a Certicate of Ocial Search for land parcel Number Eldoret Municipality/ Block 14/ 478 which conrmed that he is the registered owner of the property and had no entries relating to the 2nd Defendant/Applicant’s interest. 29. The Plainti contends that he was not issued with a Certicate of Search over land parcel number Eldoret Municipality/ Block 14/476 as he was informed by the 4th Defendant/Respondent that the register and/or parcel le was missing at the Land Registry and a Certicate of Ocial Search could not be issued. 30. In addition, he avers that he continually followed up the issuance of a Certicate of Ocial Search and on/or about the 21st day of June, 2023 he was informed by the 4th Defendant that a restriction had been placed by the 2nd Defendant/ Applicant on 13th April, 2023 claiming purchasers’ interest over the parcels of land Eldoret Municipality/ Block 14/476 and 14/ 478. 31. The Plainti averred that at the time of instituting the said suit, there existed restrictions which was placed by the 2nd Defendant/Applicant over the suit properties and that formed the cause of action against Defendant/ Applicant in the instant suit. 32. He further conrmed that the 2nd Defendant/Applicant has removed the restrictions and he is entitled to costs from the 2nd Defendant/ Applicant for causing the institution of the said suit by registering restriction over his properties. 33. The Plainti herein maintained that it should be noted that the 2nd Defendant/Applicant herein has exhibited before the Honourable Court a Certicate of Ocial Search issued on 11th November, 2025 which clearly shows that the restriction was removed without him being notied and after the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6103/eng@2026-10-01 3

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institution of the suit and service of the pleadings upon the 2nd Defendant/ Applicant and further after several court attendances. 34. Lastly, according to the Plainti herein, it is therefore clear that there existed a cause of action against the 2nd Defendant/ Applicant at the time of ling the suit and it is only proper that the 2nd Defendant/ Applicant be condemned to pay him costs of Kshs. 200,000/- before the order of exit is made. 35. On 11th May, 2026, this court issued directions that the present application be canvassed by way of written submissions. The 2nd Respondent/Applicant led his submissions dated 10th June, 2026 while the Plainti/Respondent led his submissions dated 25th June, 2026 together with the authorities cited, which I have read and duly considered in arriving at my decision as hereunder. Analysis and Determination: 36. I have carefully considered the motion, the grounds pleaded in support thereof, the Supporting Adavit and the Replying Adavit. I have also read and considered the submissions led by the Applicant herein as well as the law and the authorities cited thereunder. 37. The court nds that the issues for determination are: i. Whether there existed a cause of action against the 2nd Defendant/Applicant at the time of ling the suit and, if so, whether the subsequent withdrawal of the restriction extinguished such cause of action; ii. Whether the name of the 2nd Defendant should be struck out of the pleadings. iii. Who bears the costs of the application? i. Whether there existed a cause of action against the 2nd Defendant/Applicant at the time of ling the suit and, if so, whether the subsequent withdrawal of the restriction extinguished such cause of action; 38. The rst issue of determination herein is whether there existed a cause of action against the 2nd Defendant/ Applicant at the time of ling the said suit and if so whether the subsequent withdrawal of the said restriction extinguished such cause of action. 39. The said Application dated 7th May 2026 is brought under Order 1 rule 10 (2) of the Civil Procedure Rules which provides that: “ 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 plainti or defendants, be struck out, and that the name of any person who ought to have been joined, whether as plainti or defendant, or whose presence before the court may be necessary in order to enable the court eectually and completely to adjudicate upon and settle all questions involved in the suit, be added." 40. Therefore, Order 1 Rule 10(2) of the Civil Procedure Rules grants the court power, at any stage of proceedings, to strike out a party who has been improperly joined in the suit and to add necessary parties, so as to enable the court eectually and completely adjudicate all questions involved in the suit https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6103/eng@2026-10-01 4

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41. In the case of Pinnacle Projects Limited & 3 others v Beatper Enterprises Limited &4 others [2016] eKLR, the court held as follows: “ From the passage above, it is clear that the court may on its own motion or on application of any party to the proceedings order the striking out a party who the court nds was improperly joined. In the exercise of that discretion, the court must as a matter of cause, act according to reason and fairness and not according to its whims and caprice.” 42. The 2nd Defendant/Applicant herein contends that there is no cause of action against him. His position is that his involvement with the said suit land arose from the restriction which he caused to be registered over the suit properties after he had allegedly entered into a transaction with persons whom he understood to be agents of the 1st Defendant. He maintains that the restriction was merely intended to safeguard what he believed to be his interest in the properties. 43. In addition, he further contends that since he has subsequently withdrawn the restriction, he no longer has any interest in the suit properties and that the Plainti's claim against him has consequently been extinguished. It is therefore his position that his continued presence in the proceedings serves no useful purpose. 44. On the other hand, the Plainti herein is of a dierent view. The Plainti herein contends that at the time the suit was instituted on 29th April, 2025, the restriction registered by the Applicant on 13th April, 2023 was still in existence. The Plainti therefore maintains that he had a legitimate claim against the Applicant and that the subsequent removal of the restriction, which occurred after the commencement of the proceedings, cannot retrospectively extinguish the cause of action which existed at the time the suit was led. 45. Therefore, the question that arises is what constitutes a cause of action. “ A cause of action is an act on the part of the defendant, which gives the plainti his cause of complaint.” 46. That denition was given by Pearson J. in the case of Drummond Jackson vs. Britain Medical Association (1970) 2 WLR 688 at pg 616. In an earlier case, Read vs. Brown (1889), 22 QBD 128, Lord Esher, M.R. had dened it as: “ Every fact which it would be necessary for the plainti to prove, if traversed, in order to support his right to the judgement of the court”. 47. Lord Diplock, for his part in Letang vs. Cooper [1964] 2 All ER 929 at 934 rendered the following denition: “ A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.” 48. In the present matter, the Plainti asserts that he is the registered proprietor of Eldoret Municipality/ Block 14/476 and Eldoret Municipality/Block 14/478. His complaint against the 2nd Defendant arose from the fact that a restriction had been registered over those properties claiming a purchaser's interest. 49. The 2nd Defendant/Applicant herein does not dispute that he caused the restriction to be registered. This is because in his supporting adavit dated 7th May,2025 he did conrm that he did so after https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6103/eng@2026-10-01 5

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the persons with whom he had been dealing became unresponsive and he became concerned about protecting what he considered to be his interest in the properties. 50. Whereas the 2nd Defendant/Applicant in his Supporting Adavit dated 7th May 2026 gave an explanation on the reason as to why he put up the said restriction, his said explanation does not warrant the legal consequences of the said restriction on the suit land. Indeed, it was the said restriction that prompted the plainti to le this suit. 51. The legal provisions cited here below within the Land Registration Act govern the procedure to be adhered to in the registration and removal of restrictions to wit: Section 76 of the Land Registration Act provides that: ‘ (1) For the prevention of any fraud or improper dealing or for any other sucient cause, the Registrar may, either with or without the application of any person interested in the land, lease or charge, and after directing such inquiries to be made and notices to be served and hearing such persons as the Registrar considers t, make an order (hereinafter referred to as a restriction) prohibiting or restricting dealings with any particular land, lease or charge. (2) A restriction may be expressed to endure— (2A) 52. (a) for a particular period; (b) until the occurrence of a particular event; or (c) until a further order is made, and may prohibit or restrict all dealings or only or the dealings that do not comply with specied conditions, and the restriction shall be registered in the appropriate register. A restriction shall be registered in the register and may prohibit or restrict either all dealings in the land or only those dealings which do not comply with specied conditions.’ Section 77 provides that: ' 53. (1) The Registrar shall give notice, in writing, of a restriction to the proprietor aected by the restriction. (2) An instrument that is inconsistent with a restriction shall not be registered while the restriction is still registered except by order of the court or of the Registrar.’ Further section 78 of the Land Registration Act stipulates that: ' (1) The Registrar may, at anytime and on application by any person interested or at the Registrar’s own motion, and after giving the parties aected by the restriction an opportunity of being heard, order the removal or variation of a restriction. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6103/eng@2026-10-01 6

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(2) Upon the application of a proprietor aected by a restriction, and upon notice to the Registrar, the court may order a restriction to be removed, varied, or other order as it deems t, and may make an order as to costs.' 54. Therefore, the legal eect of a restriction is to put a limitation upon dealings with the aected property. In the present case, the Plainti asserts that he was the registered proprietor of the suit properties and that a restriction had been placed over those properties by the Applicant claiming a purchaser's interest. 55. The said restriction existed when the said suit was instituted by the Plainti on 8th April, 2025. It is evident on the face of the record that, the restriction registered on 13th April, 2023 had not been removed. The Plainti's complaint was therefore founded upon an existing entry on the register which aected his ability to deal with his registered properties. 56. I therefore nd that the Plainti had a recognizable cause of action against the Applicant at the time the suit was instituted. The fact that the Applicant may have acted in good faith, or that he believed that the persons who approached him were authorised agents of the 1st Defendant, does not, at this interlocutory stage, retrospectively remove the legal eect of the restriction. 57. It is also important that the Honourable Court must then consider the eect of the Applicant's subsequent withdrawal of the restriction herein. 58. From the 2nd Defendant/Applicant Supporting Adavit dated 7th May 2026, it is evident that the said restriction has been removed.The Applicant states that he voluntarily withdrew it after engaging the Plainti with a view of settling the dispute. The Plainti equally acknowledges that the restriction has since been removed, but points out that the said removal occurred after the suit had already been instituted and after the Applicant had been served with the proceedings. 59. The subsequent removal of the said restriction has therefore not altered the factual claim from which the plaint dated 8th April, 2025 raises the plainti’s claim. Moreover, the issue of costs remains undetermined. 60. In conclusion, I nd that the Applicant has not demonstrated that the Plainti's suit discloses no cause of action against him. The cause of action existed when the suit was instituted. The subsequent withdrawal of the restriction does not extinguish the claim against the applicant. The issue of costs is still outstanding. ii. Whether the name of the 2nd Defendant should be struck out of the pleadings; 61. Having found that there was a cause of action against the Applicant when the suit was instituted and that the suit was not rendered incompetent by failure to rst approach the Land Registrar, the Court must now determine the practical consequence of the subsequent withdrawal of the restriction. 62. Order 1 Rule 10(2) of the Civil Procedure Rules empowers the Court, 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, to order that the name of a party improperly joined be struck out. The Court may also retain a party where his presence is necessary to enable it eectively and completely to adjudicate upon and settle all questions involved in the suit. 63. The provision therefore calls for consideration of the Applicant's present necessity in the proceedings. It is not necessarily conned to the question whether his joinder was justied at the commencement of the proceedings. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6103/eng@2026-10-01 7

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64. In the present case, the Applicant's connection to the Plainti's claim was primarily founded upon the restriction registered against the suit properties. That restriction has now been removed. However, other issues such as cots remain unresolved. Therefore, in such circumstances, retaining the Applicant in the proceedings would serve the practical purpose of the Plainti's remaining dispute to be capable of being eectually and completely determined with the Applicant’s presence. 65. I am therefore satised that the subsequent withdrawal of the restriction has not materially changed the circumstances in which the Applicant was originally joined to the proceedings. The subsequent withdrawal of the restriction after the institution of the suit cannot retrospectively render the claim against the Applicant unjustied. The Applicant's name should therefore not be struck out on account of the subsequent withdrawal of the restriction. iii. Who shall bear the costs of this application? 66. On the question of costs, it is now settled that costs shall follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21), which equally vests this court with discretion on whether or not to award costs. Therefore, a successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. 67. In the present matter, the application has failed. I nd that the plainti is entitled to costs of the application. Orders:68. The upshot is that the 2nd Defendant /Applicant’s Notice of Motion dated 7th May, 2026 is not merited and is dismissed with costs to the plainti. 69. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDORET ON THIS 1ST DAY OF OCTOBER, 2026 VIDE MICROSOFT TEAMS. HON. C. K. YANO ELC, JUDGE In the virtual presence of: Ms. Kemboi for Plainti. Mr. Ogongo for 2nd Defendant /Applicant. No appearance for 1st, 3rd & 4th Defendants. Court Assistant – Laban https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6103/eng@2026-10-01 8

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