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Court of AppealPartially AllowedCivil Appeal No 132 of 1989

Nitin Properties Ltd v Kalsi & another (Civil Appeal 132 of 1989) [1995] KECA 146 (KLR)

Court of Appeal
30 October 1995
JGJ.E GicheruRKR.O KwachASA.B Shah
1,097 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Court of Appeal (Gicheru, Kwach and Shah JJ A) allowed in part an appeal against a ruling of Dugdale J in HCCC No 3417 of 1987 striking out the appellant's entire plaint. The respondents had raised a preliminary point that reliefs based on adverse possession could not be brought by plaint but only by originating summons. The court agreed that, given the mandatory provisions of order 36 rule 3D of the Civil Procedure Rules and its decision in Lali v Wachira, the adverse possession paragraphs and prayers had to be struck out; counsel for the appellant properly conceded as much. However, the court held that the judge had gone too far in striking out the whole suit. The plaint also pleaded an arguable claim based on registration of 1.97 acres, movement of beacons, boundary alterations, trespass and constructive trust, and on a preliminary point those facts were to be assumed correct. Relying on the established principle that striking out is a drastic remedy confined to plain and obvious cases - drawn from Peruvian Guano, Moore v Lawson and DT Dobie v Muchina - the court held a plaint can be struck out only where the claim is incontestably or hopelessly bad, and only upon a proper summons under order VI rule 16. The court set aside the striking-out order, reinstated the plaint, gave the appellant 30 days to seek leave to amend, issued an injunction in terms of prayers 2 and 3 of the Chamber Summons of 28 August 1987 pending trial, and awarded the appellant the costs of the appeal. The judgment binds lower courts on both the adverse-possession pleading rule and the cautious exercise of the striking-out jurisdiction.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether a claim based on adverse possession may be brought by plaint rather than originating summons
  2. 2.Whether the judge was right in striking out the whole plaint when only part of the claim (adverse possession reliefs) was procedurally defective

Key legal issues

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01

Procedure for raising adverse possession claims

Holding

Adverse possession relief cannot be pleaded in a plaint; it must be sought by originating summons under order 36 rule 3D of the Civil Procedure Rules

Reasoning

The court held that the mandatory provisions of order 36 rule 3D and its prior decision in Lali & others v Wachira & others made the objection to the adverse possession claim well taken. The respondents' advocate correctly conceded that the adverse possession paragraphs and prayers had to be struck out of the plaint, but the defect was confined to those parts of the pleading.

p. 1
02

Scope of striking-out jurisdiction

Holding

Only the defective parts of a pleading should be struck out; a plaint with an arguable claim cannot be wholly dismissed on a preliminary point

Reasoning

The plaint alleged matters beyond adverse possession - registration of 1.97 acres, beacon movements, boundary alterations, trespass and constructive trust. On a preliminary point those facts are deemed correct, giving the plaintiff an arguable claim. Striking out is drastic, reserved for plain and obvious cases, and the judge should instead have required amendment of the plaint.

p. 2

Legal principles established

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  • A relief based on adverse possession must be brought by originating summons, not by plaint
  • A preliminary objection raises a pure point of law on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained or discretion exercised
  • A plaint can be struck out only if the claim is incontestably or hopelessly bad; striking out is a drastic remedy to be exercised with extreme caution
  • A proper application for striking out must be brought by summons under order VI rule 16 of the Civil Procedure Rules

Court orders

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  1. 1.Appeal allowed and the order of the judge set aside
  2. 2.Plaint reinstated
  3. 3.Appellant given 30 days to apply to the superior court for leave to amend the plaint
  4. 4.Injunction issued in terms of prayers 2 and 3 of the Chamber Summons dated 28th August 1987, to remain in force until hearing and final determination of the suit
  5. 5.Appellant granted the costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JG
majority
RK
majority
AS
majority
On appeal from
High Court of Kenya at Nairobi
HCCC No 3417 of 1987
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court (Civil Appeal)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the end we allow this appeal and set aside the order of the judge and in lieu thereof we reinstate the plaint and give the appellant 30 days within which to apply to the superior court for leave to amend the plaint.
p. 2Final orders - appeal allowed, plaint reinstated
A relief based on adverse possession must be brought by originating summons.
p. 2Adverse possession procedure
A court of justice should aim at sustaining a suit rather than terminating it by summary dismissal. Normally a law suit is for pursuing it.
p. 2Approach to striking out pleadings (Madan JA in DT Dobie)
The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion confuse the issues. This improper practice should stop.
p. 1Abuse of preliminary objections

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nitin Properties Ltd v Kalsi & another (Civil Appeal 132 of 1989) [1995] KECA 146 (KLR)", Case Analysis (1995). Civil Appeal No 132 of 1989. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/146/eng@1995-10-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.