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ELCDismissedNot stated in the judgment· [2014] KEELC 550 (KLR)

Kimiyi Ole Nkangi v David Muyuku Kilonzi & 3 others [2014] KEELC 550 (KLR)

Environment and Land Court
9 May 2014
MGMARY M. GITUMBI
1,961 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to throw out a land dispute, ruling that striking out a case is reserved for only the clearest situations.

What this practically means

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Executive summary

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The 1st and 2nd Defendants moved the court by Notice of Motion dated 9th August 2013 seeking to strike out the Plaintiff's Plaint and to have judgment entered in their favour in terms of their counterclaim, with costs. They asserted that the Plaintiff sold them 30 acres out of parcel No. 10029/54 Kitengela for Kshs. 75,000/- under a written sale agreement of 23rd December 1987, that Land Control Board consent issued on 13th October 1988, that a transfer was signed on 25th September 1995, and that they obtained title to L.R. No. 14776/1 on 21st November 1995. They further relied on CID investigations and a Forensic Document Examination Report showing that the documents the Plaintiff alleged were forged bore the Plaintiff's own signatures, and that the Plaintiff faces criminal charges of giving false information. The Plaintiff, in his Replying Affidavit, denied selling the land, asserting that the Kshs. 75,000/- was a loan to process his title, and maintained that his fraud allegations required a full trial. The court framed the issue as whether it could strike out the Plaint and enter judgment on the counterclaim. Applying Sunday Principal Newspaper Limited and D.T. Dobie & Company (Kenya) Ltd v Muchina, the court held that striking out is a drastic remedy reserved for plain and obvious cases. Despite finding the Defendants' case strong, the court held the Plaintiff should be given the chance to state his claim at a full hearing, with the Defendants' only prejudice being delay compensable in costs. The application was dismissed with costs in the cause.

Key legal issues

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Whether the Plaint should be struck out and judgment entered on the counterclaim

Holding

The application was dismissed; the suit should proceed to full hearing

Reasoning

The court accepted it has power at any stage to strike out a pleading, but that power is draconian and exercised sparingly in plain and obvious cases. Although the Defendants presented a strong documentary case, the Plaintiff should be allowed a full hearing to state his claim comprehensively; the Defendants' only prejudice is delay, for which costs provide partial compensation. The suit should proceed to full hearing at the earliest opportunity.

p. 3

Legal principles established

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  • Striking out a pleading is a drastic remedy that cannot be resorted to unless it is quite clear that the pleading discloses no arguable case; it applies only in plain and obvious cases
  • Before dismissing a case for not disclosing a reasonable cause of action, the court must act cautiously, consider all facts without embarking on a trial, and not deal with the merits

Court orders

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  1. 1.The 1st and 2nd Defendants' Notice of Motion dated 9th August 2013 is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Cases cited (2)

  • Sunday Principal Newspaper Limited
    [1961] 2 ALL E.R. 758
  • D.T. Dobie & Company (Kenya) Ltd Vs Muchina
    [1982] KLR
Jurisdiction invoked
Inherent power of the court at any stage of proceedings to strike out a pleading (as stated in the ruling); no specific constitutional/statutory provision cited

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, "Kimiyi Ole Nkangi v David Muyuku Kilonzi & 3 others [2014] KEELC 550 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/550/eng@2014-05-09

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