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ELCDismissedNot stated in the judgment (suit filed 8th May 2002; Chamber Summons dated 19th August 2010)· [2014] KEELC 566 (KLR)

Stephen Waweru Thuo & another v Isaak Mussa Adam & 5 others [2014] KEELC 566 (KLR)

Environment and Land Court
30 May 2014
MGMary M. Gitumbi
1,647 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to strike out a defence because competing ownership documents created a genuine dispute that only a full trial can resolve.

What this practically means

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Executive summary

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The Plaintiffs, alleging allocation of Plot Nos. 117 and 118 (the suit premises) by the Narok County Council on 15th April 1992 and production of allotment letters, filed a Chamber Summons dated 19th August 2010 seeking to strike out the Statement of Defence of the 1st to 5th Defendants and enter judgment as prayed in the plaint, contending the Defence was a sham raising mere denials and no triable issues, and would prejudice, embarrass or delay fair trial. The 2nd Defendant, Karim Bux Mussa Adam, opposed the application through a Replying Affidavit, asserting that the Defendants hold a certificate of lease over Narok/Township/356 issued on 12th September 2001 for 99 years, that the defence raises triable issues as to whether the Plaintiffs' allotment letters are superior to the certificate of lease, and that the application was brought after an inordinate delay of 8 years. The court framed a single issue: whether the Defence should be struck out. Relying on Order 2 Rule 15(1) of the Civil Procedure Rules, 2010 and the striking-out principles in the Sunday case, D.T. Dobie & Company (Kenya) Ltd v Muchina and Vinodeep Investment Property Ltd v Henkel Company Ltd, the court held that the competing claims of ownership based on allotment letters versus a certificate of lease constitute the main triable issue going to the heart of the suit, determinable only after full trial. The application was dismissed with costs to the Defendants, and the suit directed to proceed to full hearing at the earliest possible moment.

Key legal issues

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Whether the Defendants' Statement of Defence should be struck out under Order 2 Rule 15(1) of the Civil Procedure Rules, 2010

Holding

The application to strike out was dismissed because the Defence raised a genuine triable issue - the competing ownership claims based on allotment letters versus a certificate of lease - which cannot be resolved on a striking-out application.

Reasoning

Applying Order 2 Rule 15(1) and the principles in the Sunday case and D.T. Dobie v Muchina, the court held that striking out is a drastic remedy reserved for plain and obvious cases. The Defendants asserted ownership based on a certificate of lease, which directly conflicts with the Plaintiffs' claim based on letters of allotment. That conflict of title is determinable only after adduction of evidence at full trial, so the Defence discloses an arguable case and the application fails.

p. 3

Legal principles established

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  • The drastic remedy of striking out a pleading is only available in plain and obvious cases where the pleading discloses no arguable case
  • A court must act cautiously on a striking-out application, not dealing with the merits, which are reserved for the trial judge
  • A defence that raises a triable issue going to the heart of the suit cannot be struck out; such an issue must be determined after full trial

Court orders

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  1. 1.The Chamber Summons dated 19th August 2010 is dismissed
  2. 2.The suit is to proceed to full hearing at the earliest possible moment
  3. 3.Costs of the application awarded to the Defendants
Jurisdiction invoked
Original civil jurisdiction over a land dispute; application brought under Order 2 Rule 15(1) 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, "Stephen Waweru Thuo & another v Isaak Mussa Adam & 5 others [2014] KEELC 566 (KLR)", Case Analysis (2014). Not stated in the judgment (suit filed 8th May 2002; Chamber Summons dated 19th August 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/566/eng@2014-05-30

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