NGURUMAN LIMITED v SHOMPOLE GROUP RANCH & 3 OTHERS [2007] KECA 398 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that land trespass claims deserve a full trial and cannot be thrown out early unless completely hopeless.
What this practically means
#Executive summary
#Key legal issues
#Whether a claim of trespass in 2000 was res judicata on the strength of orders made in 1991 against different trespassers
No - the 2000 trespass appeared from the plaint to be a different trespass from the one restrained in 1991, and the question could not be resolved summarily on a striking-out application.
The order of the Resident Magistrate in RMCC No. 15 of 1991 was made in respect of trespass occurring before 25th November 1991 and bound only Shompole Group Ranch and its officials. The plaint alleged a distinct trespass by about 500 members in August and September 2000. Applying the principle that every continuance of a trespass creates a fresh cause of action, whether the 2000 trespass was covered by the 1991 orders was a triable issue requiring a full hearing.
Whether orders made in RMCC No. 15 of 1991 could be deployed against Ol Kiramatian Group Ranch and its officials, who were never parties to that suit
No - the 1991 orders never bound Ol Kiramatian Group Ranch or its officials, and the consolidation of the two suits introduced parties who were strangers to the earlier decree.
The 1991 decree was made against Shompole Group Ranch and its officials only; Ol Kiramatian Group Ranch and its officials were not parties to it and no order was ever made against them. After consolidation the suit assumed a different dimension by suing those new parties. Citing orders made in proceedings in which a party was not involved to defeat its suit could not stand, and the issue required a full trial.
The principles governing striking out a plaint under Order 6 rule 13(1)(a) of the Civil Procedure Rules
The power to strike out must be exercised with the greatest care and caution; the court must not drive away a litigant however weak the case, and must not embark on the merits or decide the suit summarily.
Following D.T. Dobie & Company (Kenya) Ltd vs Muchina and Crescent Construction Co. Ltd vs Delphis Bank Ltd, the Court reiterated that a plaint should not be dismissed unless it is plainly and obviously hopeless and beyond redemption by amendment. The Judge's summary dismissal of the plaint, treating Ombija J's ruling as a final determination of res judicata, departed from these principles.
Whether the learned Judge erred in failing to consider the appellant's replying affidavit
Yes - the Judge's finding that the application was undefended was an oversight, though the error was not decisive since the matter fell to be decided on the pleadings alone.
The Court agreed with counsel that the application before the superior court was in fact defended by way of a replying affidavit dated 14th May 2002, which the Judge referred to elsewhere in her ruling. Her statement that the application was not specifically defended was an oversight. However, the error was immaterial because an application under Order 6 rule 13(1)(a) must be determined on the plaint alone.
Whether a judge hearing a party alleged to be in contempt must record a decision on any objection to being heard
The judge has a discretion to hear or refuse to hear a contemnor, and where the objection is raised too late it may be rejected - but the decision rejecting it should be recorded on the record.
Relying on Hadkison vs Hadkison, disobedience of a court order is not of itself a bar to being heard. The preliminary objection that the respondents were in contempt was raised too late at the hearing. The Judge was entitled to hear the respondents, but she was in error in failing to record her decision rejecting the objection.
Legal principles established
#- A suit may not be summarily dismissed unless it is plainly and obviously hopeless and incurable by amendment; a mere semblance of a cause of action must be allowed to proceed to trial.
- Whether a plaint discloses a cause of action is determined on the plaint alone, assuming its express and implied allegations of fact to be true.
- Every continuance of a trespass gives rise to a fresh cause of action from day to day for as long as the trespass continues.
- Questions of res judicata involving parties who were not parties to the earlier suit are matters requiring a full hearing and cannot be resolved by summary striking out of a plaint.
- Disobedience of a court order does not of itself bar a party from being heard; the court retains a discretion whether or not to hear a contemnor, and that discretion should be recorded.
Court orders
#- 1.The appeal is allowed
- 2.The respondents shall pay the costs of the appeal and of the application before the superior court to the appellant
- 3.The matter is to proceed to full hearing before any Judge of the superior court except Ombija and Mugo JJ
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 145 of 2001 (consolidated with H.C.C.C. No. 146 of 2001)
- Jurisdiction invoked
- First appellate jurisdiction under the Constitution of Kenya and the Civil Procedure Act over the High Court ruling in H.C.C.C. No. 145 of 2001
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "NGURUMAN LIMITED v SHOMPOLE GROUP RANCH & 3 OTHERS [2007] KECA 398 (KLR)", Case Analysis (2007). Civil Appeal 73 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/398/eng@2007-03-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.