(On the 4th Defendant's Notice of Motion dated 20th May 2026, seeking to be struck off and/or removed from these proceedings as an unnecessary party and/or on account of misjoinder)
1. By a Notice of Motion dated 20th May 2026 brought under Order 1 Rules 9 and 10(2), Order 2 Rule 15(1)(a) & (b), Order 51 Rule 1 of the Civil Procedure Rules, 2010, and Section 3A of the Civil Procedure Act, the 4th Defendant, the Central Bank of Kenya (“CBK”), seeks to be struck off and removed from these proceedings. The Application is principally founded on the contention that CBK is neither a necessary nor proper party, no reasonable cause of action is disclosed against it and its joinder amounts to an abuse of the process of the Court.
2. The Application is supported by the Affidavit of Waweru Mathenge, General Counsel of CBK, sworn on 20th May 2026, and written submissions of the same date.
3. The Plaintiff opposes the Application through his Replying Affidavit sworn on 12th June 2026. His case, in substance, is that although CBK has no involvement in the receivership of Triton Petroleum Company Limited (“TPC”), he made a complaint to CBK concerning matters falling within its regulatory mandate and CBK thereafter failed to respond to that complaint. He contends that the alleged failure engages Articles 47 and 232 of the Constitution.
4. The issue is therefore a narrow one. Does the fact that CBK has no involvement in the receivership, and disputes the legal basis of the complaint made against it, warrant its removal from the suit at this stage?
The 4th Defendant’s (CBK) Case
5. CBK contended that it is an independent constitutional institution established under Article 231 of the Constitution and governed by the Central Bank of Kenya Act (Cap. 491), exercising purely statutory, regulatory, and supervisory functions in the public interest.
6. CBK emphasized that it was never a shareholder, director, receiver, debenture holder, guarantor, or contractual counterparty to TPC or any related transaction. Relying on settled common law authorities including Yuen Kun-Yeu v Attorney-General of Hong Kong [1988] AC 175 and Three Rivers District Council v Bank of England (No. 3) [2003] 2 AC 1, CBK submits that a financial regulator owes no private law duty of care in negligence to individual commercial litigants.
7. Furthermore, CBK submitted that the Banking Act and Prudential Guidelines do not create private rights of action; that any challenge to its regulatory discretion lies exclusively in public law via judicial review (Order 53 of the Civil Procedure Rules / Fair Administrative Action Act, 2015), not an ordinary commercial suit; that it is protected by statutory immunity under Section 44A of the Central Bank of Kenya Act; and that its joinder discloses no reasonable cause of action and constitutes an abuse of court process.
The Plaintiff’s Case in Opposition
8. The Plaintiff responds, first, that while Article 231(3) protects CBK from external direction or control, it does not grant constitutional immunity or elevate CBK above Articles 2(1), 10, 47, and 232 of the Constitution, which bind all State organs.
9. Second, the Plaintiff submitted that he does not assert a private law claim in tort/negligence against CBK, nor does he claim that Prudential Guidelines create a private cause of action; that his case against CBK is anchored exclusively on a public-law omission—that CBK, having received a formal regulatory complaint, breached Articles 47 and 232 by maintaining absolute administrative silence, which in itself constitutes a reviewable decision (the decision to do nothing).
10. Third, regarding forum, the Plaintiff submitted that under Article 165(3)(a) of the Constitution, the High Court possesses unlimited original jurisdiction. Divisions of the High Court are administrative arrangements rather than separate jurisdictions, and declaratory relief regarding CBK's regulatory conduct can properly be adjudicated alongside the commercial claims to avoid a multiplicity of suits.
11. The Plaintiff produced a copy of the letter dated 18th June 2025 bearing what purports to be an official receipt stamp from CBK of the same date (exhibited as “YMD-1”), directly disputing CBK’s initial assertion that no complaint was ever delivered to it.
Analysis and Determination
12. Having duly considered the pleadings and parties’ respective submissions on the subject motion, I find the main issue falling for determination is whether CBK is a necessary and/or proper party to these proceedings within the meaning of Order 1 Rule 10(2) of the Civil Procedure Rules, 2010.
13. The test for a necessary party is settled. As stated in Bungoma County Government v Martin Wanyonyi Wangila & 4 Others [2016] eKLR, a necessary party is one whose presence is indispensable to the constitution of the suit, one without whom no order can be made effectively, who has an interest in the subject matter of the litigation and whose interest is capable of being affected by the decision.
14. In Directline Assurance Company Ltd v AKM Investments Ltd & 6 others [2021] KEHC 13338 (KLR ), the Court (Mativo J – as he then was) drew a distinction between a necessary party, whose presence is indispensable to the constitution of a suit, and a proper party, whose presence facilitates a complete and effectual determination of a dispute. The learned judge stated as follows: -
“There is a vital distinction between a necessary and a proper party to a suit. A necessary party is one whose presence is a sine qua non to the constitution of the suit and without whom, no effective order can be passed with respect to the questions arising before the court. In contradistinction to this, a proper party is one in whose absence although an effective order can be passed, but whose presence is necessary for a complete and final decision on the questions involved in the proceeding…”
15. Applying this test to Prayers 3, 4, and 5 of the Plaintiff’s Motion dated 16th April 2026—which pertain to accounts, asset inventories, and derivative action against the 1st to 3rd Defendants—CBK is clearly not a necessary party. CBK holds no receivership assets, was not a party to the debentures or Deed of Settlement, and has no accounting obligation regarding TPC's commercial affairs.
16. The questions raised by those prayers can be tried and determined in their entirety as between the Plaintiff and the 1st to 3rd Defendants, without any evidence from, or order against, CBK. CBK’s presence is accordingly not necessary, still less indispensable, to the effectual and complete adjudication of that limb of the suit.
17. However, Order 1 Rule 10(2) also provides for the joinder of a proper party whose presence enables the Court to completely settle all underlying questions connected to the dispute. The pleadings, as amplified by the Plaintiff’s Supporting and Replying Affidavits, disclose a second and quite distinct claim: that CBK, having received a specific complaint within its statutory mandate, failed for a prolonged period to respond to it, in alleged breach of Articles 47 and 232 of the Constitution. That claim is answerable by CBK alone. No other Defendant could conceivably meet it.
18. In any event, under Order 1 Rule 9, a suit cannot be defeated by reason of misjoinder. A party properly joined in respect of one severable claim need not be struck out merely because it is unnecessary to another, distinct claim within the same action.
19. Accordingly. While I find that CBK is not a necessary party for purposes of prayers 3, 4 and 5 of the Plaintiff’s Motion dated 16th April 2026, it remains, at this stage, a proper party - properly joined to the suit in respect of the discrete claim pleaded against it concerning its alleged failure to respond to the complaint dated 18th June 2025.
20. Regarding the 4th Defendant’s contention that the pleadings do not disclose any reasonable cause of action against it, the Court finds it sufficient, at least at this stage, to restate the settled legal position – as established in D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another [1980] KLR 1, that a pleading will only be struck out if it is plain, obvious, and beyond doubt that no reasonable cause of action exists, assuming all pleaded facts to be true.
21. In the present case, CBK cites Yuen Kun-Yeu and Three Rivers District Council (supra) for the proposition that financial regulators do not owe a general duty of care in negligence to individual depositors or private litigants. I accept that statement of principle. It, however, does not resolve the Plaintiff’s suit because the Plaintiff has explicitly disavowed any claim in tort or negligence.
22. The Plaintiff’s claim against CBK is grounded entirely on public law under Articles 47 and 232 of the Constitution, asserting that prolonged, unexplained administrative silence in response to a formal regulatory complaint constitutes an actionable omission. Under the Fair Administrative Action Act, 2015, administrative action includes an omission to act. Whether the Plaintiff will ultimately establish a breach on the merits, or whether the relief ought to have been sought under Order 53, are matters going to the ultimate outcome and choice of remedy—they do not establish that the claim is plain and obvious nonsense on its face.
23. Furthermore, the factual contention raised by CBK that it never received the complaint is now directly controverted by Annexure “YMD-1”, which displays a CBK receipt stamp dated 18th June 2025. Unresolved factual disputes of this nature cannot be decided summarily on affidavit evidence at an interlocutory stage.
24. Finally, on the CBK’s arguments on constitutional independence and statutory immunity, it is indeed true that Article 231(3) of the Constitution secures CBK’s operational independence from external direction. However, the Court agrees with the Plaintiff’s submissions that as a matter of principle, operational independence does not equal constitutional immunity, and that CBK remains subject to the overarching dictates of the Constitution, including Articles 10, 47, and 232 – Whether CBK breached these provisions remains a matter of proof for trial or full hearing.
25. Section 33M (the Court however notes that CBK’s Counsel – perhaps erroneously – cited it as Section 44A) of the Central Bank of Kenya Act grants immunity to CBK and its officers for acts or omissions done in good faith. The provision states as follows:
“Neither the Bank nor any officer or employee thereof nor any other person appointed by the Bank under the provisions of this Part shall be liable in respect of any act or omission done in good faith by such officer, employee or other person in the execution of the duties undertaken by him.” (emphasis added)
26. Good faith is, in the respectful view of the court, inherently a question of fact that requires evidentiary evaluation regarding how CBK handled the complaint internally. It cannot be conclusively determined on the bare assertions of an interlocutory affidavit. CBK remains at liberty to plead Section 33M as an affirmative defence in its Statement of Defence.
Disposition
27. In light of the foregoing findings, the Court finds the 4th Defendant’s Notice of Motion dated 20th May 2026 to be without merit, and is hereby dismissed in its entirety.
28. Costs of this Application shall abide the outcome of the main suit.
29. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17 TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Plaintiff
……………for the 1st – 3rd Defendants
………………. for the 4th Defendant
1. By a Notice of Motion dated 20th May 2026 brought under Order 1 Rules 9 and 10(2), Order 2 Rule 15(1)(a) & (b), Order 51 Rule 1 of the Civil Procedure Rules, 2010, and Section 3A of the Civil Procedure Act, the 4th Defendant, the Central Bank of Kenya (“CBK”), seeks to be struck off and removed from these proceedings. The Application is principally founded on the contention that CBK is neither a necessary nor proper party, no reasonable cause of action is disclosed against it and its joinder amounts to an abuse of the process of the Court.
2. The Application is supported by the Affidavit of Waweru Mathenge, General Counsel of CBK, sworn on 20th May 2026, and written submissions of the same date.
3. The Plaintiff opposes the Application through his Replying Affidavit sworn on 12th June 2026. His case, in substance, is that although CBK has no involvement in the receivership of Triton Petroleum Company Limited (“TPC”), he made a complaint to CBK concerning matters falling within its regulatory mandate and CBK thereafter failed to respond to that complaint. He contends that the alleged failure engages Articles 47 and 232 of the Constitution.
4. The issue is therefore a narrow one. Does the fact that CBK has no involvement in the receivership, and disputes the legal basis of the complaint made against it, warrant its removal from the suit at this stage?
The 4th Defendant’s (CBK) Case
5. CBK contended that it is an independent constitutional institution established under Article 231 of the Constitution and governed by the Central Bank of Kenya Act (Cap. 491), exercising purely statutory, regulatory, and supervisory functions in the public interest.
6. CBK emphasized that it was never a shareholder, director, receiver, debenture holder, guarantor, or contractual counterparty to TPC or any related transaction. Relying on settled common law authorities including Yuen Kun-Yeu v Attorney-General of Hong Kong [1988] AC 175 and Three Rivers District Council v Bank of England (No. 3) [2003] 2 AC 1, CBK submits that a financial regulator owes no private law duty of care in negligence to individual commercial litigants.
7. Furthermore, CBK submitted that the Banking Act and Prudential Guidelines do not create private rights of action; that any challenge to its regulatory discretion lies exclusively in public law via judicial review (Order 53 of the Civil Procedure Rules / Fair Administrative Action Act, 2015), not an ordinary commercial suit; that it is protected by statutory immunity under Section 44A of the Central Bank of Kenya Act; and that its joinder discloses no reasonable cause of action and constitutes an abuse of court process.
The Plaintiff’s Case in Opposition
8. The Plaintiff responds, first, that while Article 231(3) protects CBK from external direction or control, it does not grant constitutional immunity or elevate CBK above Articles 2(1), 10, 47, and 232 of the Constitution, which bind all State organs.
9. Second, the Plaintiff submitted that he does not assert a private law claim in tort/negligence against CBK, nor does he claim that Prudential Guidelines create a private cause of action; that his case against CBK is anchored exclusively on a public-law omission—that CBK, having received a formal regulatory complaint, breached Articles 47 and 232 by maintaining absolute administrative silence, which in itself constitutes a reviewable decision (the decision to do nothing).
10. Third, regarding forum, the Plaintiff submitted that under Article 165(3)(a) of the Constitution, the High Court possesses unlimited original jurisdiction. Divisions of the High Court are administrative arrangements rather than separate jurisdictions, and declaratory relief regarding CBK's regulatory conduct can properly be adjudicated alongside the commercial claims to avoid a multiplicity of suits.
11. The Plaintiff produced a copy of the letter dated 18th June 2025 bearing what purports to be an official receipt stamp from CBK of the same date (exhibited as “YMD-1”), directly disputing CBK’s initial assertion that no complaint was ever delivered to it.
Analysis and Determination
12. Having duly considered the pleadings and parties’ respective submissions on the subject motion, I find the main issue falling for determination is whether CBK is a necessary and/or proper party to these proceedings within the meaning of Order 1 Rule 10(2) of the Civil Procedure Rules, 2010.
13. The test for a necessary party is settled. As stated in Bungoma County Government v Martin Wanyonyi Wangila & 4 Others [2016] eKLR, a necessary party is one whose presence is indispensable to the constitution of the suit, one without whom no order can be made effectively, who has an interest in the subject matter of the litigation and whose interest is capable of being affected by the decision.
14. In Directline Assurance Company Ltd v AKM Investments Ltd & 6 others [2021] KEHC 13338 (KLR ), the Court (Mativo J – as he then was) drew a distinction between a necessary party, whose presence is indispensable to the constitution of a suit, and a proper party, whose presence facilitates a complete and effectual determination of a dispute. The learned judge stated as follows: -
“There is a vital distinction between a necessary and a proper party to a suit. A necessary party is one whose presence is a sine qua non to the constitution of the suit and without whom, no effective order can be passed with respect to the questions arising before the court. In contradistinction to this, a proper party is one in whose absence although an effective order can be passed, but whose presence is necessary for a complete and final decision on the questions involved in the proceeding…”
15. Applying this test to Prayers 3, 4, and 5 of the Plaintiff’s Motion dated 16th April 2026—which pertain to accounts, asset inventories, and derivative action against the 1st to 3rd Defendants—CBK is clearly not a necessary party. CBK holds no receivership assets, was not a party to the debentures or Deed of Settlement, and has no accounting obligation regarding TPC's commercial affairs.
16. The questions raised by those prayers can be tried and determined in their entirety as between the Plaintiff and the 1st to 3rd Defendants, without any evidence from, or order against, CBK. CBK’s presence is accordingly not necessary, still less indispensable, to the effectual and complete adjudication of that limb of the suit.
17. However, Order 1 Rule 10(2) also provides for the joinder of a proper party whose presence enables the Court to completely settle all underlying questions connected to the dispute. The pleadings, as amplified by the Plaintiff’s Supporting and Replying Affidavits, disclose a second and quite distinct claim: that CBK, having received a specific complaint within its statutory mandate, failed for a prolonged period to respond to it, in alleged breach of Articles 47 and 232 of the Constitution. That claim is answerable by CBK alone. No other Defendant could conceivably meet it.
18. In any event, under Order 1 Rule 9, a suit cannot be defeated by reason of misjoinder. A party properly joined in respect of one severable claim need not be struck out merely because it is unnecessary to another, distinct claim within the same action.
19. Accordingly. While I find that CBK is not a necessary party for purposes of prayers 3, 4 and 5 of the Plaintiff’s Motion dated 16th April 2026, it remains, at this stage, a proper party - properly joined to the suit in respect of the discrete claim pleaded against it concerning its alleged failure to respond to the complaint dated 18th June 2025.
20. Regarding the 4th Defendant’s contention that the pleadings do not disclose any reasonable cause of action against it, the Court finds it sufficient, at least at this stage, to restate the settled legal position – as established in D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another [1980] KLR 1, that a pleading will only be struck out if it is plain, obvious, and beyond doubt that no reasonable cause of action exists, assuming all pleaded facts to be true.
21. In the present case, CBK cites Yuen Kun-Yeu and Three Rivers District Council (supra) for the proposition that financial regulators do not owe a general duty of care in negligence to individual depositors or private litigants. I accept that statement of principle. It, however, does not resolve the Plaintiff’s suit because the Plaintiff has explicitly disavowed any claim in tort or negligence.
22. The Plaintiff’s claim against CBK is grounded entirely on public law under Articles 47 and 232 of the Constitution, asserting that prolonged, unexplained administrative silence in response to a formal regulatory complaint constitutes an actionable omission. Under the Fair Administrative Action Act, 2015, administrative action includes an omission to act. Whether the Plaintiff will ultimately establish a breach on the merits, or whether the relief ought to have been sought under Order 53, are matters going to the ultimate outcome and choice of remedy—they do not establish that the claim is plain and obvious nonsense on its face.
23. Furthermore, the factual contention raised by CBK that it never received the complaint is now directly controverted by Annexure “YMD-1”, which displays a CBK receipt stamp dated 18th June 2025. Unresolved factual disputes of this nature cannot be decided summarily on affidavit evidence at an interlocutory stage.
24. Finally, on the CBK’s arguments on constitutional independence and statutory immunity, it is indeed true that Article 231(3) of the Constitution secures CBK’s operational independence from external direction. However, the Court agrees with the Plaintiff’s submissions that as a matter of principle, operational independence does not equal constitutional immunity, and that CBK remains subject to the overarching dictates of the Constitution, including Articles 10, 47, and 232 – Whether CBK breached these provisions remains a matter of proof for trial or full hearing.
25. Section 33M (the Court however notes that CBK’s Counsel – perhaps erroneously – cited it as Section 44A) of the Central Bank of Kenya Act grants immunity to CBK and its officers for acts or omissions done in good faith. The provision states as follows:
“Neither the Bank nor any officer or employee thereof nor any other person appointed by the Bank under the provisions of this Part shall be liable in respect of any act or omission done in good faith by such officer, employee or other person in the execution of the duties undertaken by him.” (emphasis added)
26. Good faith is, in the respectful view of the court, inherently a question of fact that requires evidentiary evaluation regarding how CBK handled the complaint internally. It cannot be conclusively determined on the bare assertions of an interlocutory affidavit. CBK remains at liberty to plead Section 33M as an affirmative defence in its Statement of Defence.
Disposition
27. In light of the foregoing findings, the Court finds the 4th Defendant’s Notice of Motion dated 20th May 2026 to be without merit, and is hereby dismissed in its entirety.
28. Costs of this Application shall abide the outcome of the main suit.
29. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17 TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Plaintiff
……………for the 1st – 3rd Defendants
………………. for the 4th Defendant