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ELCStruck OutNot stated in the judgment as provided· [2014] KEELC 448 (KLR)

Julius K. Atunga v Naumy Jebyegon Kemboi [2014] KEELC 448 (KLR)

Environment and Land Court
19 March 2014
MSMunyao Sila
1,411 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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A Kenyan court struck out a land suit because the disputed parcel no longer legally existed after the plaintiff's title was annulled in succession proceedings.

What this practically means

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Executive summary

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The defendant applied under Order 2 Rule 15(i)(b)(c) and (d) and Section 3A of the Civil Procedure Act to strike out the plaintiff's plaint as sham, scandalous, frivolous, vexatious, disclosing no cause of action and an abuse of process. The plaintiff had sued in 2009 claiming ownership of Nandi/Kapsengere/1289 (0.72 hectares), alleging trespass, and sought a declaration of trespass, demolition of structures and a permanent injunction. The defendant, who had purchased 1/4 acre from the original parcel Nandi/Kapsengere/49 in 2002, filed a defence and counterclaim alleging the plaintiff's title derived from an annulled grant in Kisumu Succession Cause No. 502/506 of 2006. The court examined the record and found that the grants confirming the plaintiff's title were annulled by a ruling of Aroni J dated 2 November 2011 in the consolidated succession cause; the original parcel No. 49 was re-instated and titles 1288 and 1289 revoked. The estate was redistributed afresh, giving the plaintiff 1.5 acres and the defendant her 1/4 acre, for which title Nandi/Kapsengere/1338 was issued. The plaintiff had also been convicted of forgery in Kapsabet Criminal Case No. 2071 of 2010 for forging Land Control Board consents to sub-divide the original parcel. Holding that the suit land no longer existed and the parties' issues had been determined with finality in the succession and criminal matters, the court struck out both the plaint and the counterclaim and ordered the plaintiff to pay the costs.

Key legal issues

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01

Whether the cause of action survives nullification of the plaintiff's title

Holding

The cause of action as pleaded no longer exists; the plaint is struck out

Reasoning

The plaintiff's title to Nandi/Kapsengere/1289 derived from a confirmed grant annulled on 27 May 2010. The succession court re-instated the original parcel Nandi/Kapsengere/49 and revoked titles 1288 and 1289. Fresh distribution gave the plaintiff 1.5 acres and the defendant 1/4 acre, with new titles issued. With the suit land extinct and the issues determined in the succession and criminal matters, there is nothing left for trial.

p. 2
02

Whether the defendant's counterclaim should proceed

Holding

The counterclaim is struck out as moot since the defendant has already obtained title to her 1/4 acre through the succession cause

Reasoning

The defendant counterclaimed for 1/4 acre of Nandi/Kapsengere/49, asserting a purchase from the deceased's estate. The redistribution in the succession cause confirmed her as purchaser of that 1/4 acre and title Nandi/Kapsengere/1338 was issued to her. Having obtained what she sought, the counterclaim no longer serves any purpose and was struck out together with the plaint.

p. 2

Legal principles established

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  • A suit cannot continue where the subject land has ceased to exist following nullification of the titles; the substratum of the claim is destroyed
  • A plaintiff who litigates to protect a fraudulently acquired title cannot escape paying costs

Court orders

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  1. 1.The plaintiff's suit and the counterclaim are struck out
  2. 2.The plaintiff to bear the costs of the suit and the counterclaim

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 2 Rule 15(i)(b)(c) and (d)
Jurisdiction invoked
Order 2 Rule 15(i)(b)(c) and (d) and Section 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Julius K. Atunga v Naumy Jebyegon Kemboi [2014] KEELC 448 (KLR)", Case Analysis (2014). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/448/eng@2014-03-19

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