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Court of AppealDismissedNot stated in judgment (memorandum of appeal dated 9th December 2019)· [2021] KECA 101 (KLR)

Dreamgeast Limited v Vischi & 7 others (Civil Appeal 157 of 2019) [2021] KECA 101 (KLR)

Court of Appeal
22 October 2021
4,656 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that courts will rarely strike out pleadings; disputes like these land claims must be decided at a full hearing, not on technical objections.

What this practically means

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Executive summary

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This appeal challenged a ruling of the Environment and Land Court (ELC) dated 8th October 2019 dismissing an application by the appellant (the 7th defendant, joined as 2nd interested party) to strike out the plaintifis' suit against the 1st to 5th defendants and, in particular, the 8th respondent's counterclaim. The appellant argued that the counterclaim was barred by limitation under the Limitation of Actions Act and the Public Authorities Limitation Act, that the 8th respondent was estopped by having withdrawn Malindi HCCC No. 78 of 2006, that the 8th respondent had not been properly joined as a defendant, and that the counterclaim could not stand after the 1st and 2nd respondents withdrew their claims against the 3rd to 6th respondents. The Court of Appeal (W. Karanja, Mumbi Ngugi and P. Nyamweya, JJ of Appeal) framed a single issue: whether the ELC properly exercised its discretion under Order 2 rule 15 of the Civil Procedure Rules in declining to strike out the counterclaim. Relying on D.T. Dobie & Co. (Kenya) Ltd v Muchina and Kenya Commercial Bank Ltd v James Karanja, the Court reiterated that striking out is a discretionary remedy to be exercised sparingly, and that appellate interference is warranted only where the discretion was improperly exercised. It held that the 8th respondent had been properly joined, that the withdrawal of the court file for ten years and the circumstances in which the 8th respondent's titles were cancelled and the appellant registered as owner in May 2007 required ventilation at a full hearing, and that the appellant's reliance on Ouko J's ruling of 21st November 2006 was not borne out by that ruling. The appeal was dismissed with costs to the 8th respondent. This decision binds lower courts on the sparing approach to striking out pleadings.

Key legal issues

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01

Whether the ELC properly exercised its discretion in declining to strike out the 8th respondent's counterclaim under Order 2 rule 15 of the Civil Procedure Rules

Holding

Yes. The discretion to strike out pleadings must be exercised sparingly and in very plain cases; a court should sustain a suit rather than dismiss it summarily where it shows a semblance of a cause of action capable of being cured by amendment.

Reasoning

The Court invoked the principles in D.T. Dobie & Co. (Kenya) Ltd v Muchina and Kenya Commercial Bank Ltd v James Karanja, emphasising that striking out is highly discretionary and that the court ought not to deal with the merits at that stage. The ELC's reasoning that the dispute concerned the rightful ownership of the suit properties, and that the circumstances of the cancellation of the 8th respondent's title could not be dismissed as a sham at that stage, was sound. The question of how the titles were cancelled while the suit was pending required a full hearing on the merits.

p. 8
02

Whether the 8th respondent was properly joined as a party to the suit

Holding

Yes. The 8th respondent had been joined to the suit, and the proper nomenclature was that of defendant.

Reasoning

The Court agreed with the ELC that the 8th respondent had been joined as the 1st interested party and the appellant as the 2nd interested party. Relying on Ouko J's ruling of 21st November 2006, since the suit was a civil claim the proper nomenclature for the interested parties was that of defendants; the 8th respondent was accordingly the 6th defendant and the appellant the 7th defendant. An application to strike out the counterclaim on the ground of non-joinder therefore had no basis.

p. 7
03

Estoppel, limitation and the effect of withdrawal of prior suits on the counterclaim

Holding

These contentions did not warrant striking out the counterclaim; the counterclaim was within time and required full ventilation.

Reasoning

The Court accepted the ELC's reasoning that no party could be blamed for omissions during the period the court file was missing. The 8th respondent's counterclaim, filed within 12 years of the May 2007 cancellation of its title, could not be struck out at an interlocutory stage on the appellant's estoppel and limitation arguments. The appellant's claim that Ouko J had determined ownership in its favour was found not to be borne out by a reading of that ruling.

p. 8

Legal principles established

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  • Whether or not to strike out pleadings is an exercise of the court's discretion, and an appellate court will not interfere with that discretion unless it is shown that it was improperly exercised.
  • No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is incurable by amendment; a court should aim at sustaining a suit rather than terminating it.

Court orders

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  1. 1.The appeal is dismissed with costs to the 8th respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 rule 15
  • Civil Procedure ActOrder 1, Rule 24
  • Criminal Procedure Code (CPC) - as referred to by the 8th respondentOrder 1 Rule 10(2)
  • Limitation of Actions Act, Cap 22section 4(2); section 35
  • Public Authorities Limitation Act, Cap 39section 3(1)
  • Constitution of KenyaArticles 40, 47, 50, 63, 64, 68 and 162(2)(b)
  • Environment and Land Court Actsections 18 and 19
  • Order 25 (Civil Procedure Rules) - relied on by the appellantOrder 25

Cases cited (8)

  • Harith El-Busaidy vs Kenya Commercial Bank Limited
    (2008) eKLR
  • Gladys Njeri vs Lang’ata Development Company Ltd and Another
    (2002)
  • Peter Kimani Njenga v Mugo Kamabuni Mugo & 3 others
    [2018] eKLR
  • D.T. Dobie & Co. (Kenya) Ltd vs Muchina
    (1982) KLR I
  • Kenya Commercial Bank Ltd vs James Karanja
    (1981) eKLR
  • Fernando Vischi vs Dreamgeast Limited & Another (Malindi Misc. Application No. 27 of 2012, formerly Nbi. Misc. Application No. 1220 of 2009)
  • Mumbu Holdings Ltd vs David Mkare Mulewa & 9 Others (Malindi HCCC No. 78 of 2006)
  • Fernando Vischi and Another vs Albert Mukare Mulewa & Others (HCCC No. 69 of 2006)
On appeal from
Environment and Land Court
Not stated (suit transferred from Malindi High Court to the ELC on 24th October 2017)
Jurisdiction invoked
First appeal to the Court of Appeal against a ruling of the Environment and Land Court (statutory basis not expressly stated in the judgment)

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, "Dreamgeast Limited v Vischi & 7 others (Civil Appeal 157 of 2019) [2021] KECA 101 (KLR)", Case Analysis (2021). Not stated in judgment (memorandum of appeal dated 9th December 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/101/eng@2021-10-22

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