I. Introduction
1. Before this Honourable Court for its determination is the Notice of Motion application dated 24 th April, 2026 filed by KCB BANK KENYA LIMITED, the 3 rd Defendant/Applicant herein, seeking orders that the suit against it be struck out for disclosing no reasonable cause of action in law and for being otherwise an abuse of the court process. The application was premised upon the provisions of Order 2 Rule 15 (1)(a) of the Civil Procedure Rules, 2010, together with Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Cap. 21 Laws of Kenya, and all other enabling provisions of the law.
2. The 3 rd Defendant/Applicant contended that the Plaintiff/Respondent’s claim arises from an alleged breach of contract between the Plaintiff/Respondent and the 1 st Defendant for the sale of Title No. Kwale/Mwereni/15 (Hereinafter referred to as “The Suit Property”), and that the 3 rd Defendant/Applicant was not privy to the said contract. It asserts that its only involvement was as a Chargee of the property after it was transferred to the 2 nd Defendant, and therefore it was a stranger to the allegations in the Plaint
3. Ideally, through the instant suit, the Plaintiff/Respondent sought for the relief pegged on the contract, namely a sum of Kenya Shillings Seventeen Million Six Hundred Thousand (Kshs. 17,600,000.00/=) as the balance of the purchase price and damages for breach of contract. The 3 rd Defendant argued that even if the Plaintiff were to prove all averments in the Plaint, no lawful order could issue against it, and hence its continued joinder in the suit is without basis.
4. Upon service of the application, while opposing it the Plaintiff/Respondent filed a Replying Affidavit sworn on 11 th June, 2026 on the grounds that the 3 rd Defendant/Applicant was a necessary party whose interest in the suit property arises directly from an impugned and contested chain of title. The Honourable Court shall be dealing with the issues raised at a later stage.
II. The case by the 3 rd Defendant
5. The Defendant’s sought the following orders:-
a. That the suit against the 3 rd Defendant be struck out for disclosing no reasonable cause of action known in law and being otherwise an abuse of the court process.
b. That the costs of this application and the suit be awarded to the 3 rd Defendant.
6. The application was premised on the grounds, testimonial facts and averments made out under the 7 Paragraphed Supporting Affidavit of – BONNIE OKUMU, the 3 rd Defendant/ Applicant’s Group General Counsel herein, sworn and dated the same day with the application. The Applicant averred that:
a. From his reading of the documents, the Plaintiff’s suit arose from an alleged breach of an agreement between the Plaintiff and the 1 st Defendant for the sale of title number Kwale/Mwereni/15.
b. The fact that the property was transferred to the 2 nd Defendant who charged it to the 3 rd Defendant, the 3 rd Defendant was a stranger to all the allegations in the Plaint as it was not a party to the contract.
c. The relief the Plaintiff sought was pegged on the contract, namely a sum of Kenya Shillings Seventeen Million Six Hundred Thousand (Kshs. 17,600,000.00/=) as the balance of the purchase price under the contract, and damages for breach of the contract.
d. He was informed by counsel on record that even if the Plaintiff proved all the averments in the Plaint, he would not, in law, be entitled to any order against the 3 rd Defendant.
e. Therefore no lawful reason to maintain the 3 rd Defendant as a party to the suit.
f. What was set out hereinabove was true to the best of his knowledge, information and belief, save for information whose sources he had disclosed and beliefs whose grounds he had stated.
III. The responses by the Plaintiff
7. While opposing the Notice of Motion application by the 3 rd Defendant, the Plaintiff responded through filing a 13 Paragraph sworn by JOHN BEJA KAMANZA, the Administrator of the Estate of the late DAVID KAMANZA CHABOGO on 29 th June, 2026. He affiant as follows that:-
a. He had read and understood the Notice of Motion application dated 24 th April, 2026 filed by the 3 rd Defendant seeking to strike out the suit as against it, and he swore the Affidavit in opposition thereto.
b. The Application was misconceived in law and fact and disclosed no basis for the drastic order sought.
c. The present suit was not founded solely on contractual obligations between the Plaintiff and the 1 st Defendant, but also on allegations of fraud, unlawful transfer of land, and subsequent unlawful creation of an encumbrance over the suit property.
d. The 3 rd Defendant was not a stranger to the proceedings, as it was the registered Chargee over the suit property, whose interest arose directly from the impugned and contested title derived from a manifestly fraudulent and unlawful transfer.
e. Under the Land Registration regime, including the principles governing indefeasibility of title, a charge derived from a defective, fraudulent, or illegally obtained title was impeachable in law, and the 3 rd Defendant’s interest was therefore directly in issue in those proceedings.
f. The Amended Plaint raised serious triable issues against the 3 rd Defendant, including but not limited to:
a) Whether the transfer of the suit property to the 2 nd Defendant was lawful and capable of conferring a valid title capable of being charged;
b) Whether the charge registered in favour of the 3 rd Defendant was valid in light of the alleged fraudulent and/or irregular transfer of the suit property;
c) Whether the 3 rd Defendant had conducted proper due diligence prior to registering the charge over the suit property;
d) Whether the 3 rd Defendant had acquired any enforceable proprietary interest in law or equity capable of being protected against the Plaintiff's claim;
e) Whether the Plaintiff was entitled to have the charge cancelled and/or the register rectified as a consequence of the fraudulent dealings pleaded.
g. The reliefs sought against the 3rd Defendant, including a declaration of invalidity of the Charge and consequential orders for rectification, were substantive remedies in rem which could only be determined upon full hearing and not at the interlocutory stage.
h. He stated that the 3 rd Defendant’s contention that it was a stranger to the dispute was misconceived, as its proprietary interest was directly anchored on the impugned transaction and formed part of the subject matter of the suit.
i. Striking out the suit against the 3 rd Defendant would prematurely determine substantive questions of fraud, legality of title, and validity of encumbrances without affording the Plaintiff an opportunity to be heard, thereby violating the constitutional right to a fair hearing.
j. No prejudice would have been suffered by the 3 rd Defendant if the matter proceeded to full trial, whereas the Plaintiff stood to suffer grave prejudice if the suit was struck out at that stage.
k. He therefore urged the Honourable Court to dismiss the Application with costs and allow the dispute to proceed to full hearing on its merits.
l. What was deponed to hereinabove was true to the best of his knowledge, information and belief, save for matters of law and advice from counsel which he verily believed to be true.
IV. Submissions
8. On 5 th May, 2026 while the Parties were present in Court, they were directed to have the Notice of Motion application dated 24 th April, 2026 be disposed of by way of written submissions and all the parties complied.
9. Pursuant to that, by the time of penning down the Ruling, the Honourable Court had only been able to access the submissions from the Plaintiff/Respondent from the Judiciary CTS and ELC Registry. Thus, it proceeded to render its Ruling on 31 st July, 2026 accordingly.
A. The Written Submissions by the Plaintiff/Respondent
10. While opposing the application, the Law firm of Messrs. NKO Advocates LLP filed their written submission dated 29 th June, 2026. Mr. Njuguna Advocate commenced the submissions by stating that the 3 rd Defendant/Applicant has filed the present application seeking to strike out the Plaintiff’s suit as against it on the basis that the Plaint allegedly disclosed no reasonable cause of action against it.
11. The Plaintiff opposed the Application through his Replying Affidavit sworn on 11 th June, 2026 on the grounds that the 3 rd Defendant/Applicant was a necessary party whose interest in the suit property arises directly from an impugned and contested chain of title. The Plaintiff’s case was not merely contractual. It was anchored on fraud, unlawful transfer of land, and subsequent creation of a charge over a disputed and impeached title, thereby directly implicating the 3rd Defendant’s proprietary interest.
12. According to the Learned Counsel, these submissions therefore were to address the sole issue for determination: - Whether the Plaintiff’s suit against the 3 rd Defendant/Applicant discloses no reasonable cause of action and ought to be struck out . From the outset, the Learned Counsel submitted that the Amended Plaint disclosed a reasonable cause of action against the 3 rd Defendant/Applicant. The claim against the 3 rd Defendant/Applicant arose from its role as Chargee over the suit property, which was alleged to have been transferred fraudulently and without full payment of the purchase price. Accordingly, striking out the 3 rd Defendant/Applicant from these proceedings would improperly deny the Plaintiff/Respondent an opportunity to have these issues ventilated and determined on merit, thereby infringing upon the Plaintiff/Respondent’s constitutional right to a fair hearing. To buttress on this issue, the Learned Counsel relied on the case of:- “ Investments and Mortgages Bank limited – Versus - Nancy Thumari & 3 others [2015] KEHC 2640 (KLR)” it was accepted that a court can strike out, from the proceedings, a party who is wrongly joined where there was clear evidence that that party ought not to have been sued in the first instance or where it is patently clear that there were other parties to the suit who are properly sued and the liability attributed to them is not to be shared with the party who was complaining to have been wrongly enjoined ( read joined) . The principle underpinning the decision is therefore that striking out was only justified in clear cases of misjoinder, where a party’s presence in the suit was unnecessary, irrelevant, or wholly disconnected from the issues in controversy. The aforementioned metric, the Plaintiff submitted should guide the court in determining the 3 rd Defendant/Applicant’s application.
13. Flowing from the above, the Plaintiff humbly highlights that the 3 rd Defendant was not a peripheral or improperly joined party, but a central actor in the chain of transactions complained of by the Plaintiff. The Plaintiff/Respondent’s case was that the suit property was unlawfully and/or fraudulently transferred and thereafter charged to the 3 rd Defendant/Applicant, thereby directly implicating the validity, legality, and enforceability of the charge currently held by the 3 rd Defendant/Applicant.
14. In these circumstances, the 3 rd Defendant/Applicant’s interest was not independent of the dispute but was inextricably tied to the impugned root of title. The issues raised by the Plaintiff/Respondent, including the validity of the transfer and the legality of the charge created thereon, could not be fully and effectually determined in the absence of the 3 rd Defendant/Applicant. It therefore followed that far from being wrongly joined, the 3 rd Defendant/Applicant was a necessary and proper party to these proceedings, as its participation is essential for the effective and complete adjudication of all questions relating to the suit property, including the reliefs sought against it. In addition, the Plaintiff submitted that a cause of action against a Chargee arose where the root of title was impeached in law or in fact. The 3 rd Defendant’s contention that it was a stranger to the contractual relationship between the Plaintiff and the 1 st Defendant was therefore misconceived, as the Plaintiff/Respondent’s claim was not founded on contract but on the legality of the title upon which the charge is anchored. A Charge was not an independent proprietary interest capable of existing in isolation; it is derivative in nature and derives its validity from the legality of the title charged. Consequently, where a Plaintiff/Respondent pleaded that the transfer of the property was fraudulent, irregular, and without full payment of the purchase price, and further that the resultant title was impeachable in law, any charge created over such title was necessarily placed in issue and became a proper subject of judicial determination.
15. In the present case, the Plaintiff/Respondent had specifically pleaded that the suit property was transferred without consent and without payment of the full purchase price, and was thereafter charged to the 3 rd Defendant/Applicant on the basis of that contested and impeached title. In such circumstances, the 3 rd Defendant/Applicant could not properly insulate itself behind privity of contract, because its interest was wholly dependent upon the validity of the impugned root of title, which was itself the central issue for determination in this suit.
16. The Plaintiff further submitted that allegations of fraud, once properly pleaded, automatically render all derivative transactions and interests arising therefrom triable and subject to judicial inquiry. It was trite law that fraud vitiated all transactions tainted by it, and once fraud was pleaded in relation to the root transaction, any subsequent dealings founded on the impugned transaction are necessarily placed in issue for determination by a court of law. This position had been consistently affirmed in Kenyan jurisprudence, including decisions of superior courts, which recognise that fraud could not be shielded by subsequent transfers or encumbrances, Dina Management being a case in point. In the present case, the Plaintiff has pleaded detailed particulars of fraud including unlawful transfer of the suit property without consideration, concealment of the unpaid purchase price, and subsequent dealings with third parties founded on a defective and impeached title.
17. At this interlocutory stage, the Court was not called upon to determine whether fraud had been proved to the required standard, but rather whether the pleadings disclose properly particularised allegations of fraud capable of being sustained at trial. The Plaintiff argued that this threshold had clearly been met. In that context, a charge registered over a title whose validity was impugned on grounds of fraud could not be insulated from judicial scrutiny, and its legality can only be properly determined upon full hearing of the matter. It therefore follows that the Plaintiff/Respondent had disclosed a clear and arguable cause of action against the 3 rd Defendant/Applicant.
18. The Amended Plaint specifically pleaded, inter alia, unlawful and fraudulent transfer of the suit property, creation of a charge over a disputed and impeached title, and consequential loss and damage suffered by the Plaintiff. These pleadings, on their face, establish a direct legal and factual controversy between the Plaintiff/Respondent and the 3 rd Defendant/Applicant concerning the validity and enforceability of the impugned charge. It accordingly could not be said that the Plaintiff/Respondent’s case disclosed no reasonable cause of action against the 3 rd Defendant/Applicant. At the very least, the pleadings raised serious triable issues that could only be properly ventilated and determined at a full hearing.
19. In conclusion, the Plaintiff respectfully averred that the 3 rd Defendant/Applicant’s application was misconceived both in fact and in law. The Amended Plaint disclosed a clear, arguable and properly pleaded cause of action against the 3 rd Defendant/Applicant arising from its role as Chargee over a suit property whose root of title was expressly challenged on grounds of fraud, illegality and irregularity. The issues raised by the Plaintiff/Respondent went beyond a mere contractual dispute and directly implicate the validity of the impugned transfer and the derivative charge. These are substantive matters that can only be determined upon a full hearing, where evidence will be tested through viva voce testimony and cross-examination. It was therefore submitted that this was not one of the clearest cases warranting the draconian remedy of striking out. On the contrary, the application sought to prematurely shut out the Plaintiff from ventilating serious triable issues against a party whose interest was inseparably tied to the subject matter of the suit. Hence, the Plaintiff prayed that the application be dismissed with costs, and the suit be allowed to proceed to full hearing on its merits against all the Defendants.
V. Analysis and Determination
20. I have carefully considered the Notice of Motion application dated April, 2026, the Supporting Affidavit sworn by the 3 rd Defendant/Applicant’s Group General Counsel, the Plaintiff’s Replying Affidavit, together with the rival submissions filed herein.
21. From the pleadings and arguments advanced, in order to arrive at an informed, fair and reasonable decision, the following five ( 5 ) issues fall for determination: -
a) Whether the Plaint discloses a reasonable cause of action against the 3 rd Defendant.
b) Whether the 3 rd Defendant is a necessary party to the suit.
c) Whether the doctrine of privity of contract bars the Plaintiff’s claim against the 3 rd Defendant.
d) Whether the charge registered in favour of the 3 rd Defendant creates any enforceable obligation vis-à-vis the Plaintiff.
e) Who should bear the costs of the application.
ISSUE No. a). Whether the Plaint discloses a reasonable cause of action against the 3 rd Defendant
22. Under this Sub–heading, the Honourable Court will decipher on the substratum of whether the Plaint as drawn discloses a reasonable cause of action against the 3 rd Defendant/Applicant, KCB Bank Kenya Limited. The starting point is the provision of Order 2 Rule 15(1)(a) of the Civil Procedure Rules, 2010, which empowers the Court to strike out pleadings that disclose no reasonable cause of action. The jurisprudence is settled that a cause of action must reveal a legal right enforceable against the Defendant and a corresponding duty owed by the Defendant to the Plaintiff/Respondent. A pleading that fails to establish this nexus is vulnerable to being struck out, as it amounts to inviting the Court to adjudicate on a non ‑ existent legal relationship.
23. To proceed further, as matter of convention, the Honourable Court is guided by the facts and the pleadings filed herein. The Plaintiff/Respondent’s claim was anchored on a contract for sale of land between himself and the 1 st Defendant, Pabari Distributors Limited. The 3 rd Defendant/Applicant was not privy to this contract. The only nexus pleaded was that the property was subsequently transferred to the 2 nd Defendant, who charged it to the 3 rd Defendant/Applicant. Nonetheless, the Plaintiff/Respondent sought relief pegged on the contract for a sum of Kenya Shillings Seventeen Million Six Hundred Thousand (Kshs. 17,600,000/=) as balance of purchase price and damages for breach of contract. The question therefore arises: can a party who is neither a signatory nor a participant in the contractual negotiations be held liable for obligations arising therefrom?
24. Legally speaking, “ the Doctrine of Privity of Contract” , as re - affirmed in the case of:- “Agricultural Finance Corporation – Versus - Lengetia Ltd [1985] KLR 765” , bars enforcement of contractual obligations against non ‑ parties. The Court of Appeal in that case underscored that contracts are private bargains between the parties thereto, and strangers cannot derive rights or be saddled with obligations under them. Similarly, in the case of:- “Savings & Loan (K) Limited – Versus - Kanyenje Karangaita Gakombe & Another [2015] eKLR” , the Court held that only parties to a contract can sue or be sued upon it. Applying these principles, the Plaintiff/Respondent’s pleadings, even if proved, would not entitle him to any relief against the 3 rd Defendant/Applicant.
25. Similarly, in the case of:- “Kithira – Versus - Kibiti [2024] KEELC 4102 (KLR)” , the Court emphasized that a suit must demonstrate a legal or equitable right enforceable against the Defendant; otherwise, it is liable to be struck out. The Plaintiff/Respondent did not demonstrate any contractual or statutory obligation owed by the 3 rd Defendant/Applicant to him. The mere fact that the 3 rd Defendant/Applicant held a charge over the property did not create enforceable obligations vis ‑ à ‑ vis the Plaintiff/Respondent, who was neither the Chargor nor a party to the charge instrument. The Land Registration Act, No. 3 of 2012, particularly the provision of Section 56, makes clear that a charge creates rights and obligations between the Chargor and the Chargee, not third parties.
26. The Court is also guided by the principle laid down in the case of:- “D.T. Dobie & Company (Kenya) Limited – Versus - Muchina [1982] KLR 1” , where Madan JA cautioned that striking out was a draconian remedy but necessary where a pleading was plainly unsustainable. In the present case, the Plaintiff/Respondent’s claim against the 3 rd Defendant/Applicant was tethered to a contract to which the 3 rd Defendant/Applicant was a stranger. To compel the 3rd Defendant/Applicant to remain in the proceedings would amount to unnecessary litigation, contrary to the overriding objective under the provision of Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and Section 3 of the Environment & Land Court Act, No. 19 of 2011 which require the Court to facilitate the just, expeditious, proportionate, and affordable resolution of disputes.
27. Guided by the above authorities and statutory provisions, the Court finds that the Plaint, as drawn, never disclosed any reasonable cause of action against the 3 rd Defendant/Applicant. The Plaintiff/Respondent’s claim, even if proved, would not entitle him to any relief against the 3 rd Defendant/Applicant. The continued joinder of the 3 rd Defendant/Applicant in the proceedings would therefore serve no useful purpose and would only burden the Court and the parties with unnecessary litigation. For this stand alone reason, the application must succeed accordingly.
ISSUE No. b). Whether the 3 rd Defendant is a necessary party to the suit.
28. Under this sub–heading, the Honourable Court will decipher on the substratum of whether the 3 rd Defendant/Applicant, KCB Bank Kenya Limited, was a necessary party to the proceedings. The guiding test is whether the presence of the party was indispensable to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit. This principle is codified under the provision of Order 1 Rule 10 (2) of the Civil Procedure Rules, 2010, which empowers the Court to strike out or add parties whose presence is not required for the determination of the real matter in dispute. The jurisprudence is clear that joinder of parties must serve a substantive purpose, not merely a procedural formality, and that the Court must guard against unnecessary multiplicity of parties that do not advance the cause of justice.
29. The Plaintiff/Respondent contended that the 3 rd Defendant/Applicant was a necessary party by virtue of its interest as Chargee of the suit property. However, the Plaintiff/Respondent’s claim was for balance of purchase price and damages for breach of contract, obligations that lay squarely against the 1 st Defendant, the contracting party. The 3 rd Defendant/Applicant’s interest arose only after the property was transferred to the 2 nd Defendant and charged to the Bank. That interest was confined to the Chargor – Chargee relationship and did not extend to the Plaintiff/Respondent, who was neither a party to the charge nor a guarantor. Thus, the nexus between the Plaintiff/Respondent’s contractual claim and the 3 rd Defendant/Applicant’s proprietary interest was tenuous at best, and incapable of sustaining a cause of action against the Bank.
30. In the case of:- “Kithira – Versus - Kibiti [2024] KEELC 4102 (KLR)” , the Court emphasized that a party is necessary only if its presence is indispensable to the resolution of the dispute. The Court cautioned against dragging parties into proceedings where no relief could be granted against them, noting that litigation must remain focused on the real controversy. Similarly, in the case of:- “Thuku – Versus - Muchekehu [2026] KEELC 4528 (KLR)” , the Court held that a Chargee’s rights are confined to enforcement against the Chargor and do not extend to strangers to the charge. Applying these authorities, the 3 rd Defendant/Applicant’s presence in the suit was not essential to the adjudication of the Plaintiff/Respondent’s contractual claim, which could be resolved entirely between the Plaintiff/Respondent and the 1 st Defendant.
31. The Court is further guided by the case of:- “Hinzano – Versus - Pink Properties Limited & 9 Others [2026] KEELC 2817 (KLR)” , where it was held that joinder of parties must serve a substantive purpose in resolving the dispute, and that unnecessary parties only burden the proceedings and delay justice. The Court in that case underscored that litigation must be streamlined to address the real issues in controversy, and that peripheral parties should be excluded to uphold the overriding objective of efficiency. In the present case, the Plaintiff/Respondent’s claim could be fully adjudicated upon without the participation of the 3 rd Defendant/Applicant, whose role as chargee did not create any enforceable obligations vis ‑ à ‑ vis the Plaintiff.
32. Joinder of parties is governed by the provision of Order 1 Rule 10 (2) of the Civil Procedure Rules, 2010 which provides as follows:-
“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 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.”
33. In law, the court may at any stage of the proceedings either on application by a party or on its own motion add a party to the suit if such party is necessary for the determination of the issues in dispute or whose presence is necessary in order to enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit. Therefore, the issue of joinder of parties is allowed in law and can be done at any state of the proceedings. However, joinder of parties is declined where the cause of action being proposed or the relief being sought is incompatible to or totally different from the existing cause of action or the relief. The determining factor in an application for joinder is that a common question of fact or law would arise between the existing and the intended parties.
34. In the case of “Joseph Njau Kingori – Versus - Robert Maina Chege & 3 Others [2002] eKLR” , Nambuye, J (as she then was) set out the guiding principles applications seeking for joinder of parties as follows:-
“…..parties cannot be added so as to introduce quite a new cause of action or to alter the nature of the suit. Necessary parties who ought to have been joined are parties who are necessary to the constitution of the suit without whom no decree at all can be passed. Therefore in case of a Defendant two conditions must be met: (1) There must be a right to some relief against him in respect of the matter involved in the suit. (2) His presence should be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit being one without whom no decree can be made effectively and one whose presence is necessary for complete and final decision on the questions involved in the proceedings. A proper party is one who has a designed subsisting direct and substantive interest in the issues arising in the litigation which interest will be recognizable in the Court of law being an interest, which the Court will enforce. A person who is only indicated or commercially interested in the proceedings is not entitled to be added as a party. But a person may be added as a Defendant though no relief may be claimed against him provided his presence is proper for a complete and final decision of the question involved in the suit and such a person is called a proper party as distinguished from a necessary party… Order 1 rule 10 allows the Court to add a Defendant on its own motion or upon application by either party either orally or formally by summons in chambers under Order 1 rule 22. Here the party has not moved on its own but has been moved by the intending party on its own formally. The use of the words “either party” denotes that the formal move has to be made by a party already participating in the proceedings and it would mean that an intending party cannot come on his own and choose which position he wants.”
35. The Court of Appeal in “Departed Asians Property Custodian Board – Versus - Jaffer Brothers Ltd [1999] 1 EA 55” held:
“A party may be joine
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1. Before this Honourable Court for its determination is the Notice of Motion application dated 24 th April, 2026 filed by KCB BANK KENYA LIMITED, the 3 rd Defendant/Applicant herein, seeking orders that the suit against it be struck out for disclosing no reasonable cause of action in law and for being otherwise an abuse of the court process. The application was premised upon the provisions of Order 2 Rule 15 (1)(a) of the Civil Procedure Rules, 2010, together with Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Cap. 21 Laws of Kenya, and all other enabling provisions of the law.
2. The 3 rd Defendant/Applicant contended that the Plaintiff/Respondent’s claim arises from an alleged breach of contract between the Plaintiff/Respondent and the 1 st Defendant for the sale of Title No. Kwale/Mwereni/15 (Hereinafter referred to as “The Suit Property”), and that the 3 rd Defendant/Applicant was not privy to the said contract. It asserts that its only involvement was as a Chargee of the property after it was transferred to the 2 nd Defendant, and therefore it was a stranger to the allegations in the Plaint
3. Ideally, through the instant suit, the Plaintiff/Respondent sought for the relief pegged on the contract, namely a sum of Kenya Shillings Seventeen Million Six Hundred Thousand (Kshs. 17,600,000.00/=) as the balance of the purchase price and damages for breach of contract. The 3 rd Defendant argued that even if the Plaintiff were to prove all averments in the Plaint, no lawful order could issue against it, and hence its continued joinder in the suit is without basis.
4. Upon service of the application, while opposing it the Plaintiff/Respondent filed a Replying Affidavit sworn on 11 th June, 2026 on the grounds that the 3 rd Defendant/Applicant was a necessary party whose interest in the suit property arises directly from an impugned and contested chain of title. The Honourable Court shall be dealing with the issues raised at a later stage.
II. The case by the 3 rd Defendant
5. The Defendant’s sought the following orders:-
a. That the suit against the 3 rd Defendant be struck out for disclosing no reasonable cause of action known in law and being otherwise an abuse of the court process.
b. That the costs of this application and the suit be awarded to the 3 rd Defendant.
6. The application was premised on the grounds, testimonial facts and averments made out under the 7 Paragraphed Supporting Affidavit of – BONNIE OKUMU, the 3 rd Defendant/ Applicant’s Group General Counsel herein, sworn and dated the same day with the application. The Applicant averred that:
a. From his reading of the documents, the Plaintiff’s suit arose from an alleged breach of an agreement between the Plaintiff and the 1 st Defendant for the sale of title number Kwale/Mwereni/15.
b. The fact that the property was transferred to the 2 nd Defendant who charged it to the 3 rd Defendant, the 3 rd Defendant was a stranger to all the allegations in the Plaint as it was not a party to the contract.
c. The relief the Plaintiff sought was pegged on the contract, namely a sum of Kenya Shillings Seventeen Million Six Hundred Thousand (Kshs. 17,600,000.00/=) as the balance of the purchase price under the contract, and damages for breach of the contract.
d. He was informed by counsel on record that even if the Plaintiff proved all the averments in the Plaint, he would not, in law, be entitled to any order against the 3 rd Defendant.
e. Therefore no lawful reason to maintain the 3 rd Defendant as a party to the suit.
f. What was set out hereinabove was true to the best of his knowledge, information and belief, save for information whose sources he had disclosed and beliefs whose grounds he had stated.
III. The responses by the Plaintiff
7. While opposing the Notice of Motion application by the 3 rd Defendant, the Plaintiff responded through filing a 13 Paragraph sworn by JOHN BEJA KAMANZA, the Administrator of the Estate of the late DAVID KAMANZA CHABOGO on 29 th June, 2026. He affiant as follows that:-
a. He had read and understood the Notice of Motion application dated 24 th April, 2026 filed by the 3 rd Defendant seeking to strike out the suit as against it, and he swore the Affidavit in opposition thereto.
b. The Application was misconceived in law and fact and disclosed no basis for the drastic order sought.
c. The present suit was not founded solely on contractual obligations between the Plaintiff and the 1 st Defendant, but also on allegations of fraud, unlawful transfer of land, and subsequent unlawful creation of an encumbrance over the suit property.
d. The 3 rd Defendant was not a stranger to the proceedings, as it was the registered Chargee over the suit property, whose interest arose directly from the impugned and contested title derived from a manifestly fraudulent and unlawful transfer.
e. Under the Land Registration regime, including the principles governing indefeasibility of title, a charge derived from a defective, fraudulent, or illegally obtained title was impeachable in law, and the 3 rd Defendant’s interest was therefore directly in issue in those proceedings.
f. The Amended Plaint raised serious triable issues against the 3 rd Defendant, including but not limited to:
a) Whether the transfer of the suit property to the 2 nd Defendant was lawful and capable of conferring a valid title capable of being charged;
b) Whether the charge registered in favour of the 3 rd Defendant was valid in light of the alleged fraudulent and/or irregular transfer of the suit property;
c) Whether the 3 rd Defendant had conducted proper due diligence prior to registering the charge over the suit property;
d) Whether the 3 rd Defendant had acquired any enforceable proprietary interest in law or equity capable of being protected against the Plaintiff's claim;
e) Whether the Plaintiff was entitled to have the charge cancelled and/or the register rectified as a consequence of the fraudulent dealings pleaded.
g. The reliefs sought against the 3rd Defendant, including a declaration of invalidity of the Charge and consequential orders for rectification, were substantive remedies in rem which could only be determined upon full hearing and not at the interlocutory stage.
h. He stated that the 3 rd Defendant’s contention that it was a stranger to the dispute was misconceived, as its proprietary interest was directly anchored on the impugned transaction and formed part of the subject matter of the suit.
i. Striking out the suit against the 3 rd Defendant would prematurely determine substantive questions of fraud, legality of title, and validity of encumbrances without affording the Plaintiff an opportunity to be heard, thereby violating the constitutional right to a fair hearing.
j. No prejudice would have been suffered by the 3 rd Defendant if the matter proceeded to full trial, whereas the Plaintiff stood to suffer grave prejudice if the suit was struck out at that stage.
k. He therefore urged the Honourable Court to dismiss the Application with costs and allow the dispute to proceed to full hearing on its merits.
l. What was deponed to hereinabove was true to the best of his knowledge, information and belief, save for matters of law and advice from counsel which he verily believed to be true.
IV. Submissions
8. On 5 th May, 2026 while the Parties were present in Court, they were directed to have the Notice of Motion application dated 24 th April, 2026 be disposed of by way of written submissions and all the parties complied.
9. Pursuant to that, by the time of penning down the Ruling, the Honourable Court had only been able to access the submissions from the Plaintiff/Respondent from the Judiciary CTS and ELC Registry. Thus, it proceeded to render its Ruling on 31 st July, 2026 accordingly.
A. The Written Submissions by the Plaintiff/Respondent
10. While opposing the application, the Law firm of Messrs. NKO Advocates LLP filed their written submission dated 29 th June, 2026. Mr. Njuguna Advocate commenced the submissions by stating that the 3 rd Defendant/Applicant has filed the present application seeking to strike out the Plaintiff’s suit as against it on the basis that the Plaint allegedly disclosed no reasonable cause of action against it.
11. The Plaintiff opposed the Application through his Replying Affidavit sworn on 11 th June, 2026 on the grounds that the 3 rd Defendant/Applicant was a necessary party whose interest in the suit property arises directly from an impugned and contested chain of title. The Plaintiff’s case was not merely contractual. It was anchored on fraud, unlawful transfer of land, and subsequent creation of a charge over a disputed and impeached title, thereby directly implicating the 3rd Defendant’s proprietary interest.
12. According to the Learned Counsel, these submissions therefore were to address the sole issue for determination: - Whether the Plaintiff’s suit against the 3 rd Defendant/Applicant discloses no reasonable cause of action and ought to be struck out . From the outset, the Learned Counsel submitted that the Amended Plaint disclosed a reasonable cause of action against the 3 rd Defendant/Applicant. The claim against the 3 rd Defendant/Applicant arose from its role as Chargee over the suit property, which was alleged to have been transferred fraudulently and without full payment of the purchase price. Accordingly, striking out the 3 rd Defendant/Applicant from these proceedings would improperly deny the Plaintiff/Respondent an opportunity to have these issues ventilated and determined on merit, thereby infringing upon the Plaintiff/Respondent’s constitutional right to a fair hearing. To buttress on this issue, the Learned Counsel relied on the case of:- “ Investments and Mortgages Bank limited – Versus - Nancy Thumari & 3 others [2015] KEHC 2640 (KLR)” it was accepted that a court can strike out, from the proceedings, a party who is wrongly joined where there was clear evidence that that party ought not to have been sued in the first instance or where it is patently clear that there were other parties to the suit who are properly sued and the liability attributed to them is not to be shared with the party who was complaining to have been wrongly enjoined ( read joined) . The principle underpinning the decision is therefore that striking out was only justified in clear cases of misjoinder, where a party’s presence in the suit was unnecessary, irrelevant, or wholly disconnected from the issues in controversy. The aforementioned metric, the Plaintiff submitted should guide the court in determining the 3 rd Defendant/Applicant’s application.
13. Flowing from the above, the Plaintiff humbly highlights that the 3 rd Defendant was not a peripheral or improperly joined party, but a central actor in the chain of transactions complained of by the Plaintiff. The Plaintiff/Respondent’s case was that the suit property was unlawfully and/or fraudulently transferred and thereafter charged to the 3 rd Defendant/Applicant, thereby directly implicating the validity, legality, and enforceability of the charge currently held by the 3 rd Defendant/Applicant.
14. In these circumstances, the 3 rd Defendant/Applicant’s interest was not independent of the dispute but was inextricably tied to the impugned root of title. The issues raised by the Plaintiff/Respondent, including the validity of the transfer and the legality of the charge created thereon, could not be fully and effectually determined in the absence of the 3 rd Defendant/Applicant. It therefore followed that far from being wrongly joined, the 3 rd Defendant/Applicant was a necessary and proper party to these proceedings, as its participation is essential for the effective and complete adjudication of all questions relating to the suit property, including the reliefs sought against it. In addition, the Plaintiff submitted that a cause of action against a Chargee arose where the root of title was impeached in law or in fact. The 3 rd Defendant’s contention that it was a stranger to the contractual relationship between the Plaintiff and the 1 st Defendant was therefore misconceived, as the Plaintiff/Respondent’s claim was not founded on contract but on the legality of the title upon which the charge is anchored. A Charge was not an independent proprietary interest capable of existing in isolation; it is derivative in nature and derives its validity from the legality of the title charged. Consequently, where a Plaintiff/Respondent pleaded that the transfer of the property was fraudulent, irregular, and without full payment of the purchase price, and further that the resultant title was impeachable in law, any charge created over such title was necessarily placed in issue and became a proper subject of judicial determination.
15. In the present case, the Plaintiff/Respondent had specifically pleaded that the suit property was transferred without consent and without payment of the full purchase price, and was thereafter charged to the 3 rd Defendant/Applicant on the basis of that contested and impeached title. In such circumstances, the 3 rd Defendant/Applicant could not properly insulate itself behind privity of contract, because its interest was wholly dependent upon the validity of the impugned root of title, which was itself the central issue for determination in this suit.
16. The Plaintiff further submitted that allegations of fraud, once properly pleaded, automatically render all derivative transactions and interests arising therefrom triable and subject to judicial inquiry. It was trite law that fraud vitiated all transactions tainted by it, and once fraud was pleaded in relation to the root transaction, any subsequent dealings founded on the impugned transaction are necessarily placed in issue for determination by a court of law. This position had been consistently affirmed in Kenyan jurisprudence, including decisions of superior courts, which recognise that fraud could not be shielded by subsequent transfers or encumbrances, Dina Management being a case in point. In the present case, the Plaintiff has pleaded detailed particulars of fraud including unlawful transfer of the suit property without consideration, concealment of the unpaid purchase price, and subsequent dealings with third parties founded on a defective and impeached title.
17. At this interlocutory stage, the Court was not called upon to determine whether fraud had been proved to the required standard, but rather whether the pleadings disclose properly particularised allegations of fraud capable of being sustained at trial. The Plaintiff argued that this threshold had clearly been met. In that context, a charge registered over a title whose validity was impugned on grounds of fraud could not be insulated from judicial scrutiny, and its legality can only be properly determined upon full hearing of the matter. It therefore follows that the Plaintiff/Respondent had disclosed a clear and arguable cause of action against the 3 rd Defendant/Applicant.
18. The Amended Plaint specifically pleaded, inter alia, unlawful and fraudulent transfer of the suit property, creation of a charge over a disputed and impeached title, and consequential loss and damage suffered by the Plaintiff. These pleadings, on their face, establish a direct legal and factual controversy between the Plaintiff/Respondent and the 3 rd Defendant/Applicant concerning the validity and enforceability of the impugned charge. It accordingly could not be said that the Plaintiff/Respondent’s case disclosed no reasonable cause of action against the 3 rd Defendant/Applicant. At the very least, the pleadings raised serious triable issues that could only be properly ventilated and determined at a full hearing.
19. In conclusion, the Plaintiff respectfully averred that the 3 rd Defendant/Applicant’s application was misconceived both in fact and in law. The Amended Plaint disclosed a clear, arguable and properly pleaded cause of action against the 3 rd Defendant/Applicant arising from its role as Chargee over a suit property whose root of title was expressly challenged on grounds of fraud, illegality and irregularity. The issues raised by the Plaintiff/Respondent went beyond a mere contractual dispute and directly implicate the validity of the impugned transfer and the derivative charge. These are substantive matters that can only be determined upon a full hearing, where evidence will be tested through viva voce testimony and cross-examination. It was therefore submitted that this was not one of the clearest cases warranting the draconian remedy of striking out. On the contrary, the application sought to prematurely shut out the Plaintiff from ventilating serious triable issues against a party whose interest was inseparably tied to the subject matter of the suit. Hence, the Plaintiff prayed that the application be dismissed with costs, and the suit be allowed to proceed to full hearing on its merits against all the Defendants.
V. Analysis and Determination
20. I have carefully considered the Notice of Motion application dated April, 2026, the Supporting Affidavit sworn by the 3 rd Defendant/Applicant’s Group General Counsel, the Plaintiff’s Replying Affidavit, together with the rival submissions filed herein.
21. From the pleadings and arguments advanced, in order to arrive at an informed, fair and reasonable decision, the following five ( 5 ) issues fall for determination: -
a) Whether the Plaint discloses a reasonable cause of action against the 3 rd Defendant.
b) Whether the 3 rd Defendant is a necessary party to the suit.
c) Whether the doctrine of privity of contract bars the Plaintiff’s claim against the 3 rd Defendant.
d) Whether the charge registered in favour of the 3 rd Defendant creates any enforceable obligation vis-à-vis the Plaintiff.
e) Who should bear the costs of the application.
ISSUE No. a). Whether the Plaint discloses a reasonable cause of action against the 3 rd Defendant
22. Under this Sub–heading, the Honourable Court will decipher on the substratum of whether the Plaint as drawn discloses a reasonable cause of action against the 3 rd Defendant/Applicant, KCB Bank Kenya Limited. The starting point is the provision of Order 2 Rule 15(1)(a) of the Civil Procedure Rules, 2010, which empowers the Court to strike out pleadings that disclose no reasonable cause of action. The jurisprudence is settled that a cause of action must reveal a legal right enforceable against the Defendant and a corresponding duty owed by the Defendant to the Plaintiff/Respondent. A pleading that fails to establish this nexus is vulnerable to being struck out, as it amounts to inviting the Court to adjudicate on a non ‑ existent legal relationship.
23. To proceed further, as matter of convention, the Honourable Court is guided by the facts and the pleadings filed herein. The Plaintiff/Respondent’s claim was anchored on a contract for sale of land between himself and the 1 st Defendant, Pabari Distributors Limited. The 3 rd Defendant/Applicant was not privy to this contract. The only nexus pleaded was that the property was subsequently transferred to the 2 nd Defendant, who charged it to the 3 rd Defendant/Applicant. Nonetheless, the Plaintiff/Respondent sought relief pegged on the contract for a sum of Kenya Shillings Seventeen Million Six Hundred Thousand (Kshs. 17,600,000/=) as balance of purchase price and damages for breach of contract. The question therefore arises: can a party who is neither a signatory nor a participant in the contractual negotiations be held liable for obligations arising therefrom?
24. Legally speaking, “ the Doctrine of Privity of Contract” , as re - affirmed in the case of:- “Agricultural Finance Corporation – Versus - Lengetia Ltd [1985] KLR 765” , bars enforcement of contractual obligations against non ‑ parties. The Court of Appeal in that case underscored that contracts are private bargains between the parties thereto, and strangers cannot derive rights or be saddled with obligations under them. Similarly, in the case of:- “Savings & Loan (K) Limited – Versus - Kanyenje Karangaita Gakombe & Another [2015] eKLR” , the Court held that only parties to a contract can sue or be sued upon it. Applying these principles, the Plaintiff/Respondent’s pleadings, even if proved, would not entitle him to any relief against the 3 rd Defendant/Applicant.
25. Similarly, in the case of:- “Kithira – Versus - Kibiti [2024] KEELC 4102 (KLR)” , the Court emphasized that a suit must demonstrate a legal or equitable right enforceable against the Defendant; otherwise, it is liable to be struck out. The Plaintiff/Respondent did not demonstrate any contractual or statutory obligation owed by the 3 rd Defendant/Applicant to him. The mere fact that the 3 rd Defendant/Applicant held a charge over the property did not create enforceable obligations vis ‑ à ‑ vis the Plaintiff/Respondent, who was neither the Chargor nor a party to the charge instrument. The Land Registration Act, No. 3 of 2012, particularly the provision of Section 56, makes clear that a charge creates rights and obligations between the Chargor and the Chargee, not third parties.
26. The Court is also guided by the principle laid down in the case of:- “D.T. Dobie & Company (Kenya) Limited – Versus - Muchina [1982] KLR 1” , where Madan JA cautioned that striking out was a draconian remedy but necessary where a pleading was plainly unsustainable. In the present case, the Plaintiff/Respondent’s claim against the 3 rd Defendant/Applicant was tethered to a contract to which the 3 rd Defendant/Applicant was a stranger. To compel the 3rd Defendant/Applicant to remain in the proceedings would amount to unnecessary litigation, contrary to the overriding objective under the provision of Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and Section 3 of the Environment & Land Court Act, No. 19 of 2011 which require the Court to facilitate the just, expeditious, proportionate, and affordable resolution of disputes.
27. Guided by the above authorities and statutory provisions, the Court finds that the Plaint, as drawn, never disclosed any reasonable cause of action against the 3 rd Defendant/Applicant. The Plaintiff/Respondent’s claim, even if proved, would not entitle him to any relief against the 3 rd Defendant/Applicant. The continued joinder of the 3 rd Defendant/Applicant in the proceedings would therefore serve no useful purpose and would only burden the Court and the parties with unnecessary litigation. For this stand alone reason, the application must succeed accordingly.
ISSUE No. b). Whether the 3 rd Defendant is a necessary party to the suit.
28. Under this sub–heading, the Honourable Court will decipher on the substratum of whether the 3 rd Defendant/Applicant, KCB Bank Kenya Limited, was a necessary party to the proceedings. The guiding test is whether the presence of the party was indispensable to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit. This principle is codified under the provision of Order 1 Rule 10 (2) of the Civil Procedure Rules, 2010, which empowers the Court to strike out or add parties whose presence is not required for the determination of the real matter in dispute. The jurisprudence is clear that joinder of parties must serve a substantive purpose, not merely a procedural formality, and that the Court must guard against unnecessary multiplicity of parties that do not advance the cause of justice.
29. The Plaintiff/Respondent contended that the 3 rd Defendant/Applicant was a necessary party by virtue of its interest as Chargee of the suit property. However, the Plaintiff/Respondent’s claim was for balance of purchase price and damages for breach of contract, obligations that lay squarely against the 1 st Defendant, the contracting party. The 3 rd Defendant/Applicant’s interest arose only after the property was transferred to the 2 nd Defendant and charged to the Bank. That interest was confined to the Chargor – Chargee relationship and did not extend to the Plaintiff/Respondent, who was neither a party to the charge nor a guarantor. Thus, the nexus between the Plaintiff/Respondent’s contractual claim and the 3 rd Defendant/Applicant’s proprietary interest was tenuous at best, and incapable of sustaining a cause of action against the Bank.
30. In the case of:- “Kithira – Versus - Kibiti [2024] KEELC 4102 (KLR)” , the Court emphasized that a party is necessary only if its presence is indispensable to the resolution of the dispute. The Court cautioned against dragging parties into proceedings where no relief could be granted against them, noting that litigation must remain focused on the real controversy. Similarly, in the case of:- “Thuku – Versus - Muchekehu [2026] KEELC 4528 (KLR)” , the Court held that a Chargee’s rights are confined to enforcement against the Chargor and do not extend to strangers to the charge. Applying these authorities, the 3 rd Defendant/Applicant’s presence in the suit was not essential to the adjudication of the Plaintiff/Respondent’s contractual claim, which could be resolved entirely between the Plaintiff/Respondent and the 1 st Defendant.
31. The Court is further guided by the case of:- “Hinzano – Versus - Pink Properties Limited & 9 Others [2026] KEELC 2817 (KLR)” , where it was held that joinder of parties must serve a substantive purpose in resolving the dispute, and that unnecessary parties only burden the proceedings and delay justice. The Court in that case underscored that litigation must be streamlined to address the real issues in controversy, and that peripheral parties should be excluded to uphold the overriding objective of efficiency. In the present case, the Plaintiff/Respondent’s claim could be fully adjudicated upon without the participation of the 3 rd Defendant/Applicant, whose role as chargee did not create any enforceable obligations vis ‑ à ‑ vis the Plaintiff.
32. Joinder of parties is governed by the provision of Order 1 Rule 10 (2) of the Civil Procedure Rules, 2010 which provides as follows:-
“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 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.”
33. In law, the court may at any stage of the proceedings either on application by a party or on its own motion add a party to the suit if such party is necessary for the determination of the issues in dispute or whose presence is necessary in order to enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit. Therefore, the issue of joinder of parties is allowed in law and can be done at any state of the proceedings. However, joinder of parties is declined where the cause of action being proposed or the relief being sought is incompatible to or totally different from the existing cause of action or the relief. The determining factor in an application for joinder is that a common question of fact or law would arise between the existing and the intended parties.
34. In the case of “Joseph Njau Kingori – Versus - Robert Maina Chege & 3 Others [2002] eKLR” , Nambuye, J (as she then was) set out the guiding principles applications seeking for joinder of parties as follows:-
“…..parties cannot be added so as to introduce quite a new cause of action or to alter the nature of the suit. Necessary parties who ought to have been joined are parties who are necessary to the constitution of the suit without whom no decree at all can be passed. Therefore in case of a Defendant two conditions must be met: (1) There must be a right to some relief against him in respect of the matter involved in the suit. (2) His presence should be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit being one without whom no decree can be made effectively and one whose presence is necessary for complete and final decision on the questions involved in the proceedings. A proper party is one who has a designed subsisting direct and substantive interest in the issues arising in the litigation which interest will be recognizable in the Court of law being an interest, which the Court will enforce. A person who is only indicated or commercially interested in the proceedings is not entitled to be added as a party. But a person may be added as a Defendant though no relief may be claimed against him provided his presence is proper for a complete and final decision of the question involved in the suit and such a person is called a proper party as distinguished from a necessary party… Order 1 rule 10 allows the Court to add a Defendant on its own motion or upon application by either party either orally or formally by summons in chambers under Order 1 rule 22. Here the party has not moved on its own but has been moved by the intending party on its own formally. The use of the words “either party” denotes that the formal move has to be made by a party already participating in the proceedings and it would mean that an intending party cannot come on his own and choose which position he wants.”
35. The Court of Appeal in “Departed Asians Property Custodian Board – Versus - Jaffer Brothers Ltd [1999] 1 EA 55” held:
“A party may be joine
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