Johanna Zouari Geissbulher v Viola Federigo & another [2014] KEELC 485 (KLR)
The bottom line
#A Kenyan High Court refused to strike out a land ownership lawsuit, ruling that competing ownership claims must be decided at a full trial with evidence, not on paper applications.
What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd Defendant could have the Plaint struck out on the basis that he is the registered owner of the suit property
The application was dismissed; the dispute over ownership is a matter for trial after the defence hearing
The Plaintiff pleaded and had given evidence that she purchased the suit property from the 1st Defendant for Kshs.1,700,000, while the 2nd Defendant claimed he purchased the same property from the 1st Defendant. The court held that determining ownership as between the Plaintiff and the 2nd Defendant required evidence at trial, not determination on a strike-out application. The 2nd Defendant ought instead to set the suit down for the defence hearing, the Plaintiff having already closed her case.
Which party should set the suit down for hearing at that stage
The Defendants, whose defence hearing had been adjourned at their instance, should set the suit down for defence hearing
The Plaintiff had closed her case after calling four witnesses. The defence hearing had been adjourned several times at the Defendants' instance. The court found it illogical for the 2nd Defendant to seek striking out rather than proceeding with the defence hearing, and directed that the suit be fixed for defence hearing by either party without further delay.
Legal principles established
#- Where a party's claim of ownership raises a triable issue requiring evidence, it cannot be determined by striking out the pleading on an application.
Court orders
#- 1.The 2nd Defendant's Application dated 30th March 2012 is dismissed with costs to the Plaintiff
- 2.The suit should be fixed for defence hearing by either party without any further delay
- Jurisdiction invoked
- Civil Procedure Rules, Order 2 Rule 15(1)(d)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Johanna Zouari Geissbulher v Viola Federigo & another [2014] KEELC 485 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/485/eng@2014-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.