Dreamgeast Limited v Vischi & 7 others (Civil Appeal 157 of 2019) [2021] KECA 101 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
Whether the 8th respondent was properly joined as a party to the suit
Yes. The 8th respondent had been joined to the suit, and the proper nomenclature was that of defendant.
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.
Estoppel, limitation and the effect of withdrawal of prior suits on the counterclaim
These contentions did not warrant striking out the counterclaim; the counterclaim was within time and required full ventilation.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed with costs to the 8th respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.