Tulip Properties Limited v Mohamed Koriow Nur & 6 others [2014] KEELC 340 (KLR)
The bottom line
#A Kenyan land court refused to throw out either side's claim over the same parcel of land, ruling both disputes deserve a full hearing with evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the competing pleadings disclose reasonable cause of action/defence
Both the Counterclaim and the Defence raise triable issues on the double allocation of LR No. 14277 and the validity of the competing titles, and therefore neither should be struck out.
Both parties claim to have been allocated the same parcel, LR No. 14277, and each asserts the other's title is illegal. The validity of each allocation and subsequent transfer depends on facts requiring viva voce evidence. The court applied the D.T. Dobie principle that striking out is reserved for plain and obvious hopeless cases and must not be done where a semblance of a cause of action exists.
Whether non-compliance with Order 7 Rule 5 justifies striking out a Defence before pre-trial
It does not; Order 7 Rule 4/5 provisions only operate at the pre-trial compliance stage under Order 11.
The Plaintiffs in the Counterclaim argued the Defence was fatally defective for want of witness statements and documents. The court held that these provisions come into operation only during pre-trial procedures under Order 11, and cannot be used as a basis to strike out pleadings at the interlocutory stage before pre-trial conferencing.
Legal principles established
#- The power to strike out pleadings must be exercised sparingly and cautiously, only in plain and obvious cases, since it is exercised without the court being fully informed on the merits.
- The overriding principle in an application to strike out a pleading is whether it raises triable issues.
- A pleading may only be struck out where the absence of a cause of action is clear on its face, without admitting evidence.
Court orders
#- 1.The prayers in the Notice of Motion by the 2nd Defendant in the Counterclaim dated 10th September 2013 are denied
- 2.The prayers in the Notice of Motion by the Plaintiffs in the Counterclaim dated 17th September 2013 are denied
- 3.Each of the parties shall meet the costs of their respective Notices of Motion
- Jurisdiction invoked
- Order 2 Rule 15(1) and Order 7 Rule 5 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tulip Properties Limited v Mohamed Koriow Nur & 6 others [2014] KEELC 340 (KLR)", Case Analysis (2014). Not stated in the judgment (Nairobi; double allocation of LR No. 14277). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/340/eng@2014-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.