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ELCStruck OutNot stated (suit by plaint, High Court at Eldoret)· [2013] KEELC 144 (KLR)

Samwel Ndura Kanyara v Mary Njambi Kariuki & another [2013] KEELC 144 (KLR)

Environment and Land Court (judgment signed while under the High Court at Eldoret)
26 September 2013
1,621 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's High Court struck out a land claim because the plaint was too unclear to understand, reminding litigants that a pleading must state who did what wrong and what remedy is sought.

What this practically means

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Executive summary

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The Attorney General, as 2nd defendant, applied under Order 2 Rule 15 of the Civil Procedure Rules, 2010 to have the plaintiff's suit struck out on the ground that it disclosed no reasonable cause of action, contending that the Attorney General was a stranger to the claim against the 1st defendant, Mary Njambi Kariuki. The 1st defendant supported the application, viewing the plaint as a vague complaint against the court registry. The plaintiff, acting in person, filed no response but was heard in opposition, arguing that the suit concerned five cases consolidated under one number, an admitted appeal never allotted a file in the High Court at Eldoret, and claimed a 3/4 parcel of land No. 6177 Block 14 Kamukunji and time lost. The court, applying DT Dobie & Co vs Muchina, restated that a suit should not be struck out unless hopeless and incurable by amendment, but found the plaint wholly unintelligible: it was impossible to discern the wrong pleaded, the wrongdoer, or the remedy sought, and the defects could not be cured by amendment. The court held it would be unfair to commit any defendant to such a muddled pleading and struck out the suit against both defendants with costs. The judgment was dated, signed and delivered on 26 September 2013 at Eldoret.

Key legal issues

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01

Whether the plaint disclosed a reasonable cause of action under Order 2 Rule 15(1)(a)

Holding

The plaint disclosed no cause of action against either defendant and was struck out

Reasoning

The court applied the DT Dobie test, holding that a court must exercise utmost caution before striking out a suit but that here the plaint was unintelligible: it was impossible to discern what wrong was pleaded, by whom it was committed, or what remedy was sought, and the confusion could not be cured by amendment. It would be unfair to commit any defendant to defend such a muddled pleading.

p. 3
02

Whether an affidavit is required in support of a striking-out application

Holding

No affidavit is necessary where the application is founded on Order 2 Rule 15(1)(a)

Reasoning

Order 2 Rule 15(2) provides that no evidence shall be admissible on an application under subrule (1)(a); the application need only state concisely the grounds. Hence the absence of a supporting affidavit was perfectly in order.

p. 2

Legal principles established

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  • A suit should not be summarily struck out unless it is hopeless and incurable by amendment; a mere semblance of cause of action capable of being cured by amendment should be allowed to proceed.
  • A reasonable cause of action requires a pleaded wrong, an identifiable wrongdoer and a remedy connected to both.

Court orders

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  1. 1.The suit is struck out as against both defendants
  2. 2.Costs of the suit to the defendants

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 2 Rule 15

Cases cited (1)

  • DT Dobie & Co vs Muchina
    (1982) KLR 1
Jurisdiction invoked
Order 2 Rule 15 of the Civil Procedure Rules, 2010

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, "Samwel Ndura Kanyara v Mary Njambi Kariuki & another [2013] KEELC 144 (KLR)", Case Analysis (2013). Not stated (suit by plaint, High Court at Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/144/eng@2013-09-26

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