'1. The application before this court for determination is the Respondent’s Notice of Motion dated 15th May, 2025 wherein the Applicant seeks the following orders:
a. The Honourable Court be pleased to set aside and or review its decision that the 4th Respondent is a necessary party to this suit and rendered in its ruling delivered 23.01.2025.
b. The Honourable Court be pleased to strike out the 4th Respondent as party in this suit.
c. Costs of this application be to the 4thRespondent.
2. It is contended that the Exparte Applicant appears to have misapprehended the nature of the 4th Respondent’s application and, consequently, misled the Honourable Court in its submissions.
3. It is its case that the finding by the Court at paragraph 33 of the impugned ruling, which alludes to a prima facie case concerning banditry in the North Rift Region and the role of the Cabinet Secretary for Interior, does not establish a prima facie case against the 4thRespondent, nor does it meet the standard articulated at paragraph 30 of the same ruling.
4. According to the applicant, matters touching on internal security including deployment of police officers and the recruitment or administration of the National Police Reserve fall squarely within the purview of the 2nd and 5thRespondents and that of the 4th Respondent’s constitutional mandate under Article 241 is confined to external security and the defence of the Republic’s territorial integrity and sovereignty.
5. The Applicant further argues that the recruitment of the National Police Reserve is statutorily vested in the National Police Service Commission pursuant to Article 246 of the Constitution and Section 110C of the National Police Service Act.
6. It argues that the 4th Respondent plays no role in this process and accordingly, the issues raised at paragraphs 33 and 34 of the ruling can be fully addressed by the 2nd and 5thRespondents, rendering the inclusion of the 4thRespondent superfluous.
7. It is the Applicant’s case that there exists no cause of action or relief sought against the 4thRespondent in the present proceedings. Its continued presence in the suit is therefore unwarranted and imposes unnecessary burden on judicial resources.
8. It is asserted that no prejudice would be occasioned to either the Applicant or the other Respondents by the 4thRespondent’s removal from the matter and on the contrary, such removal would facilitate the expeditious disposal of the substantive issues in contention.
9. The applicant also relied on its written submissions dated 14th July, 2025.
10. It submits that there exist clear and demonstrable errors apparent on the face of the record, and sufficient reason, to justify such review. Firstly, the Court’s decision appears to have misapprehended the nature of the 4thRespondent’s earlier application dated 5thFebruary 2024. While the 4thRespondent sought to be discharged from the proceedings on grounds that it is neither a proper nor necessary party, the Court’s ruling appears to have treated the application as one seeking to strike out the Exparte Applicant’s entire suit. It submits that this mischaracterization is discernible at paragraphs 19 to 22 and 28 to 32 of the said ruling and constitutes an error on the face of the record.
11. It is further submitted that the Court’s findings failed to distinguish between the constitutional and statutory mandates of the National Police Service and the Ministry of Defence. The Exparte Applicant erroneously alleged that the Interior Cabinet Secretary, Professor KithureKindiki, deployed officers of the 4th Respondent to Baringo County. This assertion is both factually and legally incorrect, given that recruitment, deployment, and oversight of the National Police Service are functions vested solely in the Ministry of Interior under Articles 244 and 245 of the Constitution and the National Police Service Act. Conversely, under Article 241(7)(a) of the Constitution and section 20 of the Kenya Defence Forces Act, Cap. 199, the deployment of the Kenya Defence Forces, which falls under the 4th Respondent, lies exclusively within the jurisdiction of the Defence Council. The misattribution of the deployment to the 4th Respondent constitutes a second error apparent on the record and a sufficient ground for review.
12. It is further submitted that the pleadings filed by the Exparte Applicant raise no substantive issues or causes of action against the 4th Respondent. The claims concerning breach of the Constitution, illegality, unreasonableness, and irrationality are not linked to the 4th Respondent’s actions.
13. Indeed, the 4th Respondent is neither the subject of any reliefs sought nor connected to the suspension of the ex parte Applicant’s air operator licence, which lies squarely within the purview of the 1st Respondent. It argues that in any event The 1st Respondent has also indicated no objection to the discharge of the 4th Respondent from the proceedings. As such, there exists no joinder of issues between the ex parte Applicant and the 4th Respondent to warrant its continued participation in the suit.
14. According to the Applicant/4th Respondent, the finding at paragraph 33 of the Court’s decision that there exists a prima facie case due to alleged banditry and the involvement of officers deployed by the Interior Cabinet Secretary improperly imports issues not pleaded or prayed for by the ex parte Applicant.
15. It is submitted that such a finding is both extraneous and inconsistent with the well-established principle that a court may only pronounce judgment on matters pleaded or properly placed before it for determination. This principle was affirmed by the Court of Appeal in Wanjiku v Kilangani [2023] KECA 379 (KLR), citing Galaxy Paints Company Limited v Falcon Guards Limited [2000] eKLR and IEBC & another v Stephen Mutinda Mule & 3 others [2014] eKLR, where it was held that courts are bound by the parties’ pleadings and may not introduce or determine issues not arising therefrom.
16. It is asserted that the Court’s reliance, at paragraph 35 of its ruling, on the 4th Respondent’s capacity to advise the Cabinet on matters of national security as a basis for its continued participation in these proceedings is, with respect, misconceived.
17. This issue was neither pleaded by the ex parte Applicant nor does it bear any relevance to the substantive reliefs sought in the judicial review application. The core issue before the Court pertains solely to the legality of the 1st Respondent’s decision to suspend the ex parte Applicant’s air operator licence. The role, functions, or advisory capacity of the 4th Respondent are not matters for determination within the present suit.
18. It is submitted that accordingly, the Court’s reasoning in this regard constitutes an error apparent on the face of the record and further discloses sufficient cause to warrant review under Order 45 Rule 1 of the Civil Procedure Rules, 2010.
19. In support of the prayer for discharge, the 4th Respondent relies on the decision in Joseph Njau Kingori v Robert Maina Chege & 3 others [2002] eKLR, where the Court held that for a party to be joined, it must be both a proper and necessary party, and that in the case of a defendant, a relief must flow from that defendant to the plaintiff. It must also be shown that the ultimate order or decree cannot be enforced without that party''s presence. The 4th Respondent submits that none of these conditions are met in the instant case.
20. It is reiterated that the 4th Respondent does not seek to strike out the entire suit but only to be discharged from proceedings in which it is not a necessary party. Its continued inclusion does not serve the interests of justice and only serves to unnecessarily complicate the proceedings. The discharge of the 4th Respondent will not prejudice the ex parte Applicant, nor will it hinder this Court’s ability to adjudicate the real issues in dispute. Rather, it will enhance judicial economy by allowing the Court to focus on the proper parties.
21. The Applicant prays that this Court be pleased to allow the application dated 15th February 2025 by discharging the 4th Respondent from the proceedings, with costs.
Respondent’s Case;
22. The Ex Parte Applicant, through its replying affidavit, opposes the 4th Respondent’s application.
23. It is argued that the suspension of its Air Operator Certificate No. 216 and associated Operation Specifications was effected by the 1stRespondent without affording it an opportunity to be heard was based on unsubstantiated allegations that its aircraft, registration number 5Y-DPL, was involved in banditry activities in the North Rift Region. The said suspension was communicated through a letter issued on 2nd December 2022 and 10thMarch 2023, referenced 2/1/2974/SY/DPL, that took immediate effect.
24. The Ex-Parte Applicant further argues that following these allegations, the Interior Cabinet Secretary, Professor Kithure Kindiki, deployed personnel from the 4thRespondent and emphasized the role of the National Police Service in the affected region. Additionally, National Police Reservists were recruited from local youth familiar with the terrain to verify the said claims.
25. It is contended that the 4th Respondent, having been the sole agency deployed to the North Rift in response to these allegations, is the only party capable of confirming or refuting the veracity of the claims which formed the basis of the suspension.
26. It is further argued that the 4thRespondent’s participation in these proceedings is not only necessary but also central to resolving the dispute, as it is directly implicated by the chain of events leading to the administrative action under challenge.
27. According to the Ex parte applicant, discharging the 4thRespondent would be prejudicial, render the proceedings ineffectual, and ultimately frustrate the pursuit of substantive justice.
28. The Respondent/Ex- Parte Applicant filed written submissions dated 24th May, 2025.
29. It is submitted that the power of the court to strike out pleadings under Order 2 Rule 15 of the Civil Procedure Rules must be exercised with caution. The applicable principles are well-settled, as laid down in DT Dobie & Co (K) Ltd v Muchina [1982] KLR, where the Court of Appeal defined a reasonable cause of action as one with some chance of success when only the plaint is considered, and emphasized that no suit should be summarily dismissed unless it appears hopeless and beyond redemption. Madan JA, in that case, further held that the court must act cautiously and not delve into the merits at that stage.
30. Similarly, in Crescent Construction Co Ltd v Delphis Bank Limited [2007] eKLR, the Court of Appeal reiterated that striking out pleadings is a drastic measure that should only be exercised where the case is clearly without merit, and that courts must not drive litigants away from justice merely because their case appears weak.
31. The applicant contends that it was unfairly implicated in allegations of banditry in the North Rift Region, leading to the suspension of its aircraft operations. The applicant asserts that the allegations were propagated by the 1stRespondent and followed by actions taken under the direction of the Cabinet Secretary for Interior, including the deployment of National Police Reservists.
32. It is submitted that, being the only party with deployed personnel on the ground, the Applicant is uniquely positioned to respond to the allegations and confirm or deny their veracity.The dispute thus raises a genuine issue between the parties that cannot be summarily dismissed. The Applicant asserts that the existence of such a dispute establishes a reasonable cause of action against the 4thRespondent/Applicant and that the removal of the 4thRespondent would result in the proceedings becoming an academic exercise, to the detriment of the Applicant/Respondent, who would suffer irreparable damage.
33. It is argued that the issues raised require full ventilation at trial and cannot be disposed of summarily.
34. The Ex Parte Applicant/Respondent invokes Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules on review, submitting that the court may revisit its prior ruling on account of error apparent on the face of the record or for any other sufficient reason. Reliance is placed in the Supreme Court of India case Aribam Tuleshwar Sharma v Ariban Pishak Sharma (1979) 45CC 389, 1979(11) UJ 300 SC, which held that review may be allowed on the discovery of new and important matter, or on a clear mistake or error.
35. The same principle is echoed in AjitKumar Rath v State of Orisa & Others, 9 SCC 596, and applied by the High Court in Paul Mwaniki v National Hospital Insurance Fund Board of Management [2020] eKLR, where it was held that an application for review must be based on strong grounds and self-evident error, not mere dissatisfaction with a prior ruling.
36. On costs, the Ex-Parte Applicant/Respondent relies on Section 27 of the Civil Procedure Act and the principle enshrined in Halsbury’s Laws of England (4th Ed.) Vol. 37 at p. 552, that costs follow the event unless the court directs otherwise. It is submitted that, should the application be dismissed, the Applicant/Respondent should be awarded costs on a full-indemnity basis.
37. The Ex Parte Applicant submits that a reasonable cause of action has been demonstrated against the 4th Respondent and that its removal from the proceedings is not warranted and urges this court to dismiss the application and allow the matter to proceed to full hearing on its merits.
38. The Ex Parte Applicant/Respondent prays that the application be dismissed with costs, asserting that there exists a reasonable cause of action against all Respondents, including the 4th Respondent, and that its continued participation will not occasion any prejudice but is essential to the fair adjudication of the issues in dispute
Analysis and determination:
39. Upon perusing the application, the response in opposing the application, the rival submissions and authorities cited by counsel, the following issues call for determination;
a. Whether the Application has merit.
b. Who shall bear the costs.
Whether or not the application has merit.
40. In order to succeed in the application, the Applicant has to prove that its case falls within Section 81 of The Civil Procedure Rules and order 45 The Civil Procedure Rules.
41. I am guided by The Supreme Court in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others (2020) KLR where it was held as follows:
a. “(49) Section 108 of the Evidence Act provides that, “the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side;” and Section 109 of the Act declares that, “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
42. Order 45 The Civil Procedure Rules provides that any person considering himself aggrieved-
a. By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
b. By a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the orderwithout unreasonable delay.
43. Order 45 of the Civil Procedure Rules is designed to facilitate the exercise of the court’s inherent powers and to protect the rights of persons directly affected by decisions which they were not made parties to.
44. Section 80 of the Civil Procedure Act, Cap 21 Laws of Kenya which gives the court power to review its own orders where an appeal has not been preferred against its orders for sufficient cause.
45. In the Court of Appeal decision in Accredo Ag & 3 Others Vs. Steffano Uccelli & Another (2017) eKLR it was held that;
a. “The aggrieved person instituting a review must satisfy the court that:
a. There has been discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or
b. There is some mistake or error apparent on the face of the record, or
c. There exists sufficient reason to review the decree/order.”
46. In the Supreme Court case of Francis Karioki Muruatetu & Another Vs. Republic & 5 Others as consolidated with 16 of 2013; [2016] eKLR which set down the principles of joinder that;
a. “(37) From the foregoing legal provisions, and from the case law, the following elements emerge as applicable where a party seeks to be enjoined in proceedings as an interested party:
b. One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements:
a. The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.
b. The prejudice to be suffered by the intended interested party in case of nonjoinder must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.
c. Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.”
47. The question of whether or not the 4th interested party should be made a party to the suit was argued by the parties herein.
48. The court found that indeed there was a prima case that was established against the fourth Respondent at the time it was being added as a party to this suit.
49. The applicant argues that the ex-parte Applicant appears to have misapprehended the nature of the 4th Respondent’s application and, consequently, misled the Court in its submissions. This court was not misled when it arrived at a finding that the exparte Applicant had made out a case that justified the addition of the 4th Respondent into the suit. The court exercised its discretion judiciously and independently based on the evidence before it.
50. Whether or not the 4th respondent will ultimately be found liable is an issue that can only be determined after the hearing of the entire suit on merit and I so hold.
51. The applicant''s argument that the 4th Respondent continued inclusion in the case does not serve the interests of justice and only serves to unnecessarily complicate the proceedings is misplaced. It is only the court that has the power to determine whether or not the inclusion of a party to a suit serves the interests of justice.
52. Further it is this court’s finding that it would be premature for the court to evaluate and analyse the Exparte Applicant''s case at this stage in the proceedings.
53. It is only after an in-depth case analysis that the court can determine and appreciate what the Exparte applicant’s case against the 4th Respondent is.To discharge the 4th Respondent from the proceedings at this stage will prejudice the Exparte Applicant, and I so hold.
54. The court does not agree with the Applicant that the pleadings filed by the Exparte Applicant raise no substantive issues or causes of action against the 4th Respondent. This will be determined in the judgment.
55. It is only this court that can conclusively determine which issues are minor or substantive after the pleadings are closed. The applicant is basing its case on conjecture and no more. This cannot form the basis for the setting aside the order as sought.
56. The claims around the breach of the Constitution, illegality, unreasonableness, and irrationality are not linked to the 4th Respondent’s actions according to the applicant. According to the applicant, the 4th Respondent is
57. neither the subject of any reliefs sought nor connected to the suspension of the ex parte Applicant’s air operator licence, which lies squarely within the purview of the 1st Respondent. These are issues that will be addressed fully at the hearing.
58. The court arrived at the impugned decision on merit.
The determination:
59. The applicant has not established nor demonstrated to the court’s that it fell into error in arriving at the impugned decision as to warrant the grant of the orders sought.
Order:
The application is dismissed with costs.
Dated, Signed and Delivered at Nairobi this 16th day October, 2025.
'
a. The Honourable Court be pleased to set aside and or review its decision that the 4th Respondent is a necessary party to this suit and rendered in its ruling delivered 23.01.2025.
b. The Honourable Court be pleased to strike out the 4th Respondent as party in this suit.
c. Costs of this application be to the 4thRespondent.
2. It is contended that the Exparte Applicant appears to have misapprehended the nature of the 4th Respondent’s application and, consequently, misled the Honourable Court in its submissions.
3. It is its case that the finding by the Court at paragraph 33 of the impugned ruling, which alludes to a prima facie case concerning banditry in the North Rift Region and the role of the Cabinet Secretary for Interior, does not establish a prima facie case against the 4thRespondent, nor does it meet the standard articulated at paragraph 30 of the same ruling.
4. According to the applicant, matters touching on internal security including deployment of police officers and the recruitment or administration of the National Police Reserve fall squarely within the purview of the 2nd and 5thRespondents and that of the 4th Respondent’s constitutional mandate under Article 241 is confined to external security and the defence of the Republic’s territorial integrity and sovereignty.
5. The Applicant further argues that the recruitment of the National Police Reserve is statutorily vested in the National Police Service Commission pursuant to Article 246 of the Constitution and Section 110C of the National Police Service Act.
6. It argues that the 4th Respondent plays no role in this process and accordingly, the issues raised at paragraphs 33 and 34 of the ruling can be fully addressed by the 2nd and 5thRespondents, rendering the inclusion of the 4thRespondent superfluous.
7. It is the Applicant’s case that there exists no cause of action or relief sought against the 4thRespondent in the present proceedings. Its continued presence in the suit is therefore unwarranted and imposes unnecessary burden on judicial resources.
8. It is asserted that no prejudice would be occasioned to either the Applicant or the other Respondents by the 4thRespondent’s removal from the matter and on the contrary, such removal would facilitate the expeditious disposal of the substantive issues in contention.
9. The applicant also relied on its written submissions dated 14th July, 2025.
10. It submits that there exist clear and demonstrable errors apparent on the face of the record, and sufficient reason, to justify such review. Firstly, the Court’s decision appears to have misapprehended the nature of the 4thRespondent’s earlier application dated 5thFebruary 2024. While the 4thRespondent sought to be discharged from the proceedings on grounds that it is neither a proper nor necessary party, the Court’s ruling appears to have treated the application as one seeking to strike out the Exparte Applicant’s entire suit. It submits that this mischaracterization is discernible at paragraphs 19 to 22 and 28 to 32 of the said ruling and constitutes an error on the face of the record.
11. It is further submitted that the Court’s findings failed to distinguish between the constitutional and statutory mandates of the National Police Service and the Ministry of Defence. The Exparte Applicant erroneously alleged that the Interior Cabinet Secretary, Professor KithureKindiki, deployed officers of the 4th Respondent to Baringo County. This assertion is both factually and legally incorrect, given that recruitment, deployment, and oversight of the National Police Service are functions vested solely in the Ministry of Interior under Articles 244 and 245 of the Constitution and the National Police Service Act. Conversely, under Article 241(7)(a) of the Constitution and section 20 of the Kenya Defence Forces Act, Cap. 199, the deployment of the Kenya Defence Forces, which falls under the 4th Respondent, lies exclusively within the jurisdiction of the Defence Council. The misattribution of the deployment to the 4th Respondent constitutes a second error apparent on the record and a sufficient ground for review.
12. It is further submitted that the pleadings filed by the Exparte Applicant raise no substantive issues or causes of action against the 4th Respondent. The claims concerning breach of the Constitution, illegality, unreasonableness, and irrationality are not linked to the 4th Respondent’s actions.
13. Indeed, the 4th Respondent is neither the subject of any reliefs sought nor connected to the suspension of the ex parte Applicant’s air operator licence, which lies squarely within the purview of the 1st Respondent. It argues that in any event The 1st Respondent has also indicated no objection to the discharge of the 4th Respondent from the proceedings. As such, there exists no joinder of issues between the ex parte Applicant and the 4th Respondent to warrant its continued participation in the suit.
14. According to the Applicant/4th Respondent, the finding at paragraph 33 of the Court’s decision that there exists a prima facie case due to alleged banditry and the involvement of officers deployed by the Interior Cabinet Secretary improperly imports issues not pleaded or prayed for by the ex parte Applicant.
15. It is submitted that such a finding is both extraneous and inconsistent with the well-established principle that a court may only pronounce judgment on matters pleaded or properly placed before it for determination. This principle was affirmed by the Court of Appeal in Wanjiku v Kilangani [2023] KECA 379 (KLR), citing Galaxy Paints Company Limited v Falcon Guards Limited [2000] eKLR and IEBC & another v Stephen Mutinda Mule & 3 others [2014] eKLR, where it was held that courts are bound by the parties’ pleadings and may not introduce or determine issues not arising therefrom.
16. It is asserted that the Court’s reliance, at paragraph 35 of its ruling, on the 4th Respondent’s capacity to advise the Cabinet on matters of national security as a basis for its continued participation in these proceedings is, with respect, misconceived.
17. This issue was neither pleaded by the ex parte Applicant nor does it bear any relevance to the substantive reliefs sought in the judicial review application. The core issue before the Court pertains solely to the legality of the 1st Respondent’s decision to suspend the ex parte Applicant’s air operator licence. The role, functions, or advisory capacity of the 4th Respondent are not matters for determination within the present suit.
18. It is submitted that accordingly, the Court’s reasoning in this regard constitutes an error apparent on the face of the record and further discloses sufficient cause to warrant review under Order 45 Rule 1 of the Civil Procedure Rules, 2010.
19. In support of the prayer for discharge, the 4th Respondent relies on the decision in Joseph Njau Kingori v Robert Maina Chege & 3 others [2002] eKLR, where the Court held that for a party to be joined, it must be both a proper and necessary party, and that in the case of a defendant, a relief must flow from that defendant to the plaintiff. It must also be shown that the ultimate order or decree cannot be enforced without that party''s presence. The 4th Respondent submits that none of these conditions are met in the instant case.
20. It is reiterated that the 4th Respondent does not seek to strike out the entire suit but only to be discharged from proceedings in which it is not a necessary party. Its continued inclusion does not serve the interests of justice and only serves to unnecessarily complicate the proceedings. The discharge of the 4th Respondent will not prejudice the ex parte Applicant, nor will it hinder this Court’s ability to adjudicate the real issues in dispute. Rather, it will enhance judicial economy by allowing the Court to focus on the proper parties.
21. The Applicant prays that this Court be pleased to allow the application dated 15th February 2025 by discharging the 4th Respondent from the proceedings, with costs.
Respondent’s Case;
22. The Ex Parte Applicant, through its replying affidavit, opposes the 4th Respondent’s application.
23. It is argued that the suspension of its Air Operator Certificate No. 216 and associated Operation Specifications was effected by the 1stRespondent without affording it an opportunity to be heard was based on unsubstantiated allegations that its aircraft, registration number 5Y-DPL, was involved in banditry activities in the North Rift Region. The said suspension was communicated through a letter issued on 2nd December 2022 and 10thMarch 2023, referenced 2/1/2974/SY/DPL, that took immediate effect.
24. The Ex-Parte Applicant further argues that following these allegations, the Interior Cabinet Secretary, Professor Kithure Kindiki, deployed personnel from the 4thRespondent and emphasized the role of the National Police Service in the affected region. Additionally, National Police Reservists were recruited from local youth familiar with the terrain to verify the said claims.
25. It is contended that the 4th Respondent, having been the sole agency deployed to the North Rift in response to these allegations, is the only party capable of confirming or refuting the veracity of the claims which formed the basis of the suspension.
26. It is further argued that the 4thRespondent’s participation in these proceedings is not only necessary but also central to resolving the dispute, as it is directly implicated by the chain of events leading to the administrative action under challenge.
27. According to the Ex parte applicant, discharging the 4thRespondent would be prejudicial, render the proceedings ineffectual, and ultimately frustrate the pursuit of substantive justice.
28. The Respondent/Ex- Parte Applicant filed written submissions dated 24th May, 2025.
29. It is submitted that the power of the court to strike out pleadings under Order 2 Rule 15 of the Civil Procedure Rules must be exercised with caution. The applicable principles are well-settled, as laid down in DT Dobie & Co (K) Ltd v Muchina [1982] KLR, where the Court of Appeal defined a reasonable cause of action as one with some chance of success when only the plaint is considered, and emphasized that no suit should be summarily dismissed unless it appears hopeless and beyond redemption. Madan JA, in that case, further held that the court must act cautiously and not delve into the merits at that stage.
30. Similarly, in Crescent Construction Co Ltd v Delphis Bank Limited [2007] eKLR, the Court of Appeal reiterated that striking out pleadings is a drastic measure that should only be exercised where the case is clearly without merit, and that courts must not drive litigants away from justice merely because their case appears weak.
31. The applicant contends that it was unfairly implicated in allegations of banditry in the North Rift Region, leading to the suspension of its aircraft operations. The applicant asserts that the allegations were propagated by the 1stRespondent and followed by actions taken under the direction of the Cabinet Secretary for Interior, including the deployment of National Police Reservists.
32. It is submitted that, being the only party with deployed personnel on the ground, the Applicant is uniquely positioned to respond to the allegations and confirm or deny their veracity.The dispute thus raises a genuine issue between the parties that cannot be summarily dismissed. The Applicant asserts that the existence of such a dispute establishes a reasonable cause of action against the 4thRespondent/Applicant and that the removal of the 4thRespondent would result in the proceedings becoming an academic exercise, to the detriment of the Applicant/Respondent, who would suffer irreparable damage.
33. It is argued that the issues raised require full ventilation at trial and cannot be disposed of summarily.
34. The Ex Parte Applicant/Respondent invokes Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules on review, submitting that the court may revisit its prior ruling on account of error apparent on the face of the record or for any other sufficient reason. Reliance is placed in the Supreme Court of India case Aribam Tuleshwar Sharma v Ariban Pishak Sharma (1979) 45CC 389, 1979(11) UJ 300 SC, which held that review may be allowed on the discovery of new and important matter, or on a clear mistake or error.
35. The same principle is echoed in AjitKumar Rath v State of Orisa & Others, 9 SCC 596, and applied by the High Court in Paul Mwaniki v National Hospital Insurance Fund Board of Management [2020] eKLR, where it was held that an application for review must be based on strong grounds and self-evident error, not mere dissatisfaction with a prior ruling.
36. On costs, the Ex-Parte Applicant/Respondent relies on Section 27 of the Civil Procedure Act and the principle enshrined in Halsbury’s Laws of England (4th Ed.) Vol. 37 at p. 552, that costs follow the event unless the court directs otherwise. It is submitted that, should the application be dismissed, the Applicant/Respondent should be awarded costs on a full-indemnity basis.
37. The Ex Parte Applicant submits that a reasonable cause of action has been demonstrated against the 4th Respondent and that its removal from the proceedings is not warranted and urges this court to dismiss the application and allow the matter to proceed to full hearing on its merits.
38. The Ex Parte Applicant/Respondent prays that the application be dismissed with costs, asserting that there exists a reasonable cause of action against all Respondents, including the 4th Respondent, and that its continued participation will not occasion any prejudice but is essential to the fair adjudication of the issues in dispute
Analysis and determination:
39. Upon perusing the application, the response in opposing the application, the rival submissions and authorities cited by counsel, the following issues call for determination;
a. Whether the Application has merit.
b. Who shall bear the costs.
Whether or not the application has merit.
40. In order to succeed in the application, the Applicant has to prove that its case falls within Section 81 of The Civil Procedure Rules and order 45 The Civil Procedure Rules.
41. I am guided by The Supreme Court in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others (2020) KLR where it was held as follows:
a. “(49) Section 108 of the Evidence Act provides that, “the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side;” and Section 109 of the Act declares that, “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
42. Order 45 The Civil Procedure Rules provides that any person considering himself aggrieved-
a. By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
b. By a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the orderwithout unreasonable delay.
43. Order 45 of the Civil Procedure Rules is designed to facilitate the exercise of the court’s inherent powers and to protect the rights of persons directly affected by decisions which they were not made parties to.
44. Section 80 of the Civil Procedure Act, Cap 21 Laws of Kenya which gives the court power to review its own orders where an appeal has not been preferred against its orders for sufficient cause.
45. In the Court of Appeal decision in Accredo Ag & 3 Others Vs. Steffano Uccelli & Another (2017) eKLR it was held that;
a. “The aggrieved person instituting a review must satisfy the court that:
a. There has been discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or
b. There is some mistake or error apparent on the face of the record, or
c. There exists sufficient reason to review the decree/order.”
46. In the Supreme Court case of Francis Karioki Muruatetu & Another Vs. Republic & 5 Others as consolidated with 16 of 2013; [2016] eKLR which set down the principles of joinder that;
a. “(37) From the foregoing legal provisions, and from the case law, the following elements emerge as applicable where a party seeks to be enjoined in proceedings as an interested party:
b. One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements:
a. The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.
b. The prejudice to be suffered by the intended interested party in case of nonjoinder must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.
c. Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.”
47. The question of whether or not the 4th interested party should be made a party to the suit was argued by the parties herein.
48. The court found that indeed there was a prima case that was established against the fourth Respondent at the time it was being added as a party to this suit.
49. The applicant argues that the ex-parte Applicant appears to have misapprehended the nature of the 4th Respondent’s application and, consequently, misled the Court in its submissions. This court was not misled when it arrived at a finding that the exparte Applicant had made out a case that justified the addition of the 4th Respondent into the suit. The court exercised its discretion judiciously and independently based on the evidence before it.
50. Whether or not the 4th respondent will ultimately be found liable is an issue that can only be determined after the hearing of the entire suit on merit and I so hold.
51. The applicant''s argument that the 4th Respondent continued inclusion in the case does not serve the interests of justice and only serves to unnecessarily complicate the proceedings is misplaced. It is only the court that has the power to determine whether or not the inclusion of a party to a suit serves the interests of justice.
52. Further it is this court’s finding that it would be premature for the court to evaluate and analyse the Exparte Applicant''s case at this stage in the proceedings.
53. It is only after an in-depth case analysis that the court can determine and appreciate what the Exparte applicant’s case against the 4th Respondent is.To discharge the 4th Respondent from the proceedings at this stage will prejudice the Exparte Applicant, and I so hold.
54. The court does not agree with the Applicant that the pleadings filed by the Exparte Applicant raise no substantive issues or causes of action against the 4th Respondent. This will be determined in the judgment.
55. It is only this court that can conclusively determine which issues are minor or substantive after the pleadings are closed. The applicant is basing its case on conjecture and no more. This cannot form the basis for the setting aside the order as sought.
56. The claims around the breach of the Constitution, illegality, unreasonableness, and irrationality are not linked to the 4th Respondent’s actions according to the applicant. According to the applicant, the 4th Respondent is
57. neither the subject of any reliefs sought nor connected to the suspension of the ex parte Applicant’s air operator licence, which lies squarely within the purview of the 1st Respondent. These are issues that will be addressed fully at the hearing.
58. The court arrived at the impugned decision on merit.
The determination:
59. The applicant has not established nor demonstrated to the court’s that it fell into error in arriving at the impugned decision as to warrant the grant of the orders sought.
Order:
The application is dismissed with costs.
Dated, Signed and Delivered at Nairobi this 16th day October, 2025.
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