1. Before Court is the Notice of Motion dated 12/2/2026 brought by the 2nd defendant. The same is brought under Order 1 Rule 10(2) of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act seeking that the name of the 2nd defendant be struck out from the proceedings for having been improperly and unnecessarily joined.
2. The application is supported by the affidavit of Otieno Aluoka, the County Attorney of the County Government of Kisumu. The applicant contends that the impugned statements complained of by the plaintiff were made solely by the 1st defendant in his personal capacity without the authority, sanction or instructions of the County Government of Kisumu.
3. It is deposed that the County Executive Committee never authorised the publication complained of and that upon learning of the incident, the 2nd defendant publicly distanced itself from the statements and issued an apology. The County Attorney further depones that he also tendered an apology before Court on behalf of the 2nd defendant. It was therefore argued that the 2nd defendant is not a necessary party to the proceedings and that its continued participation amounts to an abuse of the court process.
4. The plaintiff opposed the application and submitted that the application is premature. That the pleadings disclose an employer-employee relationship between the 1st and 2nd defendant. That the impugned utterances are alleged to have been made by the 1st defendant in the course of his employment with the County Government.
5. It was argued that whether the 1st defendant acted within or outside the scope of his employment is a substantive issue requiring evidence and cannot properly be determined through an interlocutory application seeking to strike out the 2nd defendant’s name from the proceedings. Reliance was placed on Order 1 of the Civil Procedure Rules and it was therefore urged that the issue should await full trial.
6. The sole issue for determination in this matter is whether the 2nd defendant has demonstrated sufficient grounds to warrant being struck out from these proceedings. Order 1 Rule 10(2) of the Civil Procedure Rules provides that: -
"The court may at any stage of the proceedings ... order that the name of any party improperly joined be struck out and that the name of any person who ought to have been joined ... be added."
7. The guiding principle therefore is, whether the party sought to be removed is either improperly joined or is unnecessary for the effectual and complete adjudication of the questions before the Court.
8. The law regarding joinder of parties is now well settled. In Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55 , it was held that a necessary party is one whose presence before the Court is necessary in order to enable the Court effectually and completely adjudicate upon and settle all questions involved in the suit. It was stated thus:
“A clear distinction is called for between joining a party who ought to have been joined as a defendant and one whose presence before the Court is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit. A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter…For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions in the suit one of two things has to be shown. Either it has to be shown that the orders, which the plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for the avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualifies, (on an application of a Defendant) to be joined as a co-defendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.”
9. Similarly, in Civicon Limited v Kivuwatt Limited & 2 Others [2015] eKL R, the Court of Appeal stated that a necessary party is one whose presence is indispensable because the Court cannot effectively determine the issues in controversy in his absence. The Court stated thus:
“Again the power given under the Rules is discretionary which discretion must be exercised judicially. The objective of these Rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, or inconvenience and to avoid multiplicity of proceedings. Thus, any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined…from the foregoing, it may be concluded that being a discretionary order, the court may allow the joinder of a party as a defendant in a suit based on the general principles set out in Order I rule 10 (2) bearing in mind the unique circumstances of each case with regard to the necessity of the party in the determination of the subject matter of the suit, any direct prejudice likely to be suffered by the party and the practicability of the execution of the order sought in the suit, in the event that the plaintiff should succeed. We may add that all that a party needs to do is to demonstrate sufficient interest in the suit, and the interest need not be the kind that must succeed at the end of the trial.”
10. The power to strike out a party is discretionary and should be exercised cautiously. Striking a party from proceedings would amount to summarily determining a suit against such a party. That would be draconian. It is trite that no suit ought to be summarily terminated unless it is so hopeless that it plainly and obviously discloses no reasonable cause of action.
11. Although the present application concerns striking out a party rather than pleadings, the underlying principle remains that summary procedures should only be employed where the matter is plain and obvious. The basis of the application by the 2nd defendant is that, the 1st defendant acted without authority from the County Government. On the other hand, the plaintiff's case is that the impugned statements were made by the 1st defendant while serving as an employee or officer of the 2nd defendant and in the discharge, or purported discharge, of his official functions.
12. In this regard, whether the 1st defendant acted within the scope of his employment, under actual or ostensible authority or outside the scope of his employment or entirely on a personal capacity, those are questions that cannot be conclusively determined on the basis of affidavit evidence.
13. Those issues require interrogation through viva voce evidence, production of documentary evidence and, where necessary, cross-examination of witnesses. Indeed, an employer's denial of authorisation does not automatically determine the question of vicarious liability. The law recognises that liability may still arise depending on whether the employee's acts were sufficiently connected with his employment. In Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others [2014] eKLR , the Supreme Court of Kenya reiterated that courts should lean towards sustaining suits rather than summary determination.
14. The applicant has placed considerable emphasis on the apology issued by it and the one tendered before Court. While those facts may ultimately be relevant in determining liability, they do not answer the legal question presently before Court, namely, whether the 2nd defendant is a necessary party. Equally, whether the apology amounts to an admission, mitigation or complete dissociation from the impugned publication is itself a matter that can only properly be evaluated after evidence has been tendered and tested. In this regard, this Court is unable to conclude at this interlocutory stage that the 2nd defendant has been improperly joined.
15. On the contrary, considering the pleadings, there remains a live dispute as to whether the alleged acts of the 1st defendant can attract vicarious liability against the 2nd defendant. That dispute can only be resolved after a full hearing. Removing the 2nd Defendant at this stage would risk determining contested factual issues without the benefit of evidence.
16. In the circumstances, the Court finds that the application is premature. The Notice of Motion dated 12/2/2026 lacks merit and is hereby dismissed with costs.
It is so ordered.
2. The application is supported by the affidavit of Otieno Aluoka, the County Attorney of the County Government of Kisumu. The applicant contends that the impugned statements complained of by the plaintiff were made solely by the 1st defendant in his personal capacity without the authority, sanction or instructions of the County Government of Kisumu.
3. It is deposed that the County Executive Committee never authorised the publication complained of and that upon learning of the incident, the 2nd defendant publicly distanced itself from the statements and issued an apology. The County Attorney further depones that he also tendered an apology before Court on behalf of the 2nd defendant. It was therefore argued that the 2nd defendant is not a necessary party to the proceedings and that its continued participation amounts to an abuse of the court process.
4. The plaintiff opposed the application and submitted that the application is premature. That the pleadings disclose an employer-employee relationship between the 1st and 2nd defendant. That the impugned utterances are alleged to have been made by the 1st defendant in the course of his employment with the County Government.
5. It was argued that whether the 1st defendant acted within or outside the scope of his employment is a substantive issue requiring evidence and cannot properly be determined through an interlocutory application seeking to strike out the 2nd defendant’s name from the proceedings. Reliance was placed on Order 1 of the Civil Procedure Rules and it was therefore urged that the issue should await full trial.
6. The sole issue for determination in this matter is whether the 2nd defendant has demonstrated sufficient grounds to warrant being struck out from these proceedings. Order 1 Rule 10(2) of the Civil Procedure Rules provides that: -
"The court may at any stage of the proceedings ... order that the name of any party improperly joined be struck out and that the name of any person who ought to have been joined ... be added."
7. The guiding principle therefore is, whether the party sought to be removed is either improperly joined or is unnecessary for the effectual and complete adjudication of the questions before the Court.
8. The law regarding joinder of parties is now well settled. In Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55 , it was held that a necessary party is one whose presence before the Court is necessary in order to enable the Court effectually and completely adjudicate upon and settle all questions involved in the suit. It was stated thus:
“A clear distinction is called for between joining a party who ought to have been joined as a defendant and one whose presence before the Court is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit. A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter…For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions in the suit one of two things has to be shown. Either it has to be shown that the orders, which the plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for the avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualifies, (on an application of a Defendant) to be joined as a co-defendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.”
9. Similarly, in Civicon Limited v Kivuwatt Limited & 2 Others [2015] eKL R, the Court of Appeal stated that a necessary party is one whose presence is indispensable because the Court cannot effectively determine the issues in controversy in his absence. The Court stated thus:
“Again the power given under the Rules is discretionary which discretion must be exercised judicially. The objective of these Rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, or inconvenience and to avoid multiplicity of proceedings. Thus, any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined…from the foregoing, it may be concluded that being a discretionary order, the court may allow the joinder of a party as a defendant in a suit based on the general principles set out in Order I rule 10 (2) bearing in mind the unique circumstances of each case with regard to the necessity of the party in the determination of the subject matter of the suit, any direct prejudice likely to be suffered by the party and the practicability of the execution of the order sought in the suit, in the event that the plaintiff should succeed. We may add that all that a party needs to do is to demonstrate sufficient interest in the suit, and the interest need not be the kind that must succeed at the end of the trial.”
10. The power to strike out a party is discretionary and should be exercised cautiously. Striking a party from proceedings would amount to summarily determining a suit against such a party. That would be draconian. It is trite that no suit ought to be summarily terminated unless it is so hopeless that it plainly and obviously discloses no reasonable cause of action.
11. Although the present application concerns striking out a party rather than pleadings, the underlying principle remains that summary procedures should only be employed where the matter is plain and obvious. The basis of the application by the 2nd defendant is that, the 1st defendant acted without authority from the County Government. On the other hand, the plaintiff's case is that the impugned statements were made by the 1st defendant while serving as an employee or officer of the 2nd defendant and in the discharge, or purported discharge, of his official functions.
12. In this regard, whether the 1st defendant acted within the scope of his employment, under actual or ostensible authority or outside the scope of his employment or entirely on a personal capacity, those are questions that cannot be conclusively determined on the basis of affidavit evidence.
13. Those issues require interrogation through viva voce evidence, production of documentary evidence and, where necessary, cross-examination of witnesses. Indeed, an employer's denial of authorisation does not automatically determine the question of vicarious liability. The law recognises that liability may still arise depending on whether the employee's acts were sufficiently connected with his employment. In Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others [2014] eKLR , the Supreme Court of Kenya reiterated that courts should lean towards sustaining suits rather than summary determination.
14. The applicant has placed considerable emphasis on the apology issued by it and the one tendered before Court. While those facts may ultimately be relevant in determining liability, they do not answer the legal question presently before Court, namely, whether the 2nd defendant is a necessary party. Equally, whether the apology amounts to an admission, mitigation or complete dissociation from the impugned publication is itself a matter that can only properly be evaluated after evidence has been tendered and tested. In this regard, this Court is unable to conclude at this interlocutory stage that the 2nd defendant has been improperly joined.
15. On the contrary, considering the pleadings, there remains a live dispute as to whether the alleged acts of the 1st defendant can attract vicarious liability against the 2nd defendant. That dispute can only be resolved after a full hearing. Removing the 2nd Defendant at this stage would risk determining contested factual issues without the benefit of evidence.
16. In the circumstances, the Court finds that the application is premature. The Notice of Motion dated 12/2/2026 lacks merit and is hereby dismissed with costs.
It is so ordered.