1. The defendant/applicant moved the court through a Notice of Motion dated the 8th day of April 2026, which was brought under section 3A of the Civil Procedure Act, Order 1 Rule 10(2) of the Civil Procedure Rules, sections 3,6, 7 & the eleventh schedule of the Wildlife Conservation and Management Act. They are seeking the following orders:
a) That this suit, as against the 2nd defendant, be struck out for want of a reasonable cause of action and misjoinder.
b) That the costs of the application be in the cause.
2. The application was based on the following grounds:
a) The 2nd defendant is a statutory body established under section 6 of the Wildlife Conservation and Management Act, 2013, with a mandate limited to the conservation and management of National Parks, Reserves and Sanctuaries duly designated under the Act.
b) Olkalou Arboretum is neither a National Park, National Reserve nor a Sanctuary within the meaning of Section 3 as read together with the Eleventh Schedule of the Wildlife Conservation and Management Act, Cap 376 and therefore does not fall within the purview of the Act.
c) The joinder of the 2nd defendant to these proceedings is improper, irregular and amounts to a misjoinder as the said Arboretum does not fall within its statutory mandate, control, and management of operational jurisdiction.
d) The suit is vexatious and an abuse of court process.
e) It is in the interest of justice that the suit be struck out as against the 2nd defendant for want of a reasonable cause of action and misjoinder.
3. The plaintiff/respondent opposed the application and advanced the following arguments:
a) The 2nd defendant has been properly enjoined in the suit.
b) The suit discloses a reasonable cause of action against the 2nd defendant.
c) The application lacks merit.
4. Ol Kalou Arboretum was where the deceased died. He drowned in a swimming pool, which the plaintiff alleges was under the control and management of the 2nd defendant. This claim was denied.
5. Arboretum is defined by the Oxford Learner's Dictionary as:
a garden where many different types of trees are grown, for people to look at or for scientific study
None of the definitions in section 3 of the Wildlife Conservation and Management Act, 2013, includes an arboretum as part of the 2nd defendant's management. This, therefore, means that they were wrongly enjoined. Their application is allowed.
Delivered and signed at Nyandarua, this 16th day of June 2026.
a) That this suit, as against the 2nd defendant, be struck out for want of a reasonable cause of action and misjoinder.
b) That the costs of the application be in the cause.
2. The application was based on the following grounds:
a) The 2nd defendant is a statutory body established under section 6 of the Wildlife Conservation and Management Act, 2013, with a mandate limited to the conservation and management of National Parks, Reserves and Sanctuaries duly designated under the Act.
b) Olkalou Arboretum is neither a National Park, National Reserve nor a Sanctuary within the meaning of Section 3 as read together with the Eleventh Schedule of the Wildlife Conservation and Management Act, Cap 376 and therefore does not fall within the purview of the Act.
c) The joinder of the 2nd defendant to these proceedings is improper, irregular and amounts to a misjoinder as the said Arboretum does not fall within its statutory mandate, control, and management of operational jurisdiction.
d) The suit is vexatious and an abuse of court process.
e) It is in the interest of justice that the suit be struck out as against the 2nd defendant for want of a reasonable cause of action and misjoinder.
3. The plaintiff/respondent opposed the application and advanced the following arguments:
a) The 2nd defendant has been properly enjoined in the suit.
b) The suit discloses a reasonable cause of action against the 2nd defendant.
c) The application lacks merit.
4. Ol Kalou Arboretum was where the deceased died. He drowned in a swimming pool, which the plaintiff alleges was under the control and management of the 2nd defendant. This claim was denied.
5. Arboretum is defined by the Oxford Learner's Dictionary as:
a garden where many different types of trees are grown, for people to look at or for scientific study
None of the definitions in section 3 of the Wildlife Conservation and Management Act, 2013, includes an arboretum as part of the 2nd defendant's management. This, therefore, means that they were wrongly enjoined. Their application is allowed.
Delivered and signed at Nyandarua, this 16th day of June 2026.