Mkare & 515 others v Agricultural Development Corporation (Land Case 16 of 2010) [2014] KEELC 685 (KLR)
The bottom line
#A Kenyan court refused to strike out a land dispute brought by 516 residents, ruling that ownership questions must be decided at a full trial, not on paper.
What this practically means
#Executive summary
#Key legal issues
#Striking out a plaint under Order 2 Rule 15 where an interlocutory ruling has already found a prima facie case
The striking-out application was dismissed; the earlier finding of a prima facie case with chances of success meant the suit raised triable issues determinable only at full trial.
Omondi J had on 25th April 2012 ruled that the Plaintiffs established a prima facie case with chances of success, noting historical injustices in land allocation and that several families occupy the disputed land, with the balance of convenience favouring the Plaintiffs. It would be absurd and an attempt to revisit the issue through the back door for the same court, at interlocutory stage, to now strike out the suit as raising no triable issue. The suit must proceed to full hearing.
Whether ownership of the suit land can be determined on a striking-out application
Ownership of the suit land is a matter for trial, not for interlocutory determination.
The Plaintiffs claim the land as ancestral land occupied as of right, while the Defendant claims title to Kisiwani Home and Top Farm (plot no. 513 Malindi) and counter-claims for eviction of trespassers. The Defendant's own counsel deponed that ownership can only be resolved after hearing the parties, and that if the Defendant holds title the Plaintiffs may invoke adverse possession. These are triable issues.
Legal principles established
#- A court that has found a prima facie case at the interlocutory stage cannot, on a striking-out application, revisit the strength of the plaintiff's case through the back door.
- Order 2 Rule 15(1) empowers the court at any stage to strike out or amend a pleading that discloses no reasonable cause of action or defence, is scandalous, frivolous or vexatious, may prejudice, embarrass or delay fair trial, or is otherwise an abuse of process.
Court orders
#- 1.The Defendant's Application dated 31st October, 2013 is dismissed
- 2.Costs of the Application awarded to the Plaintiffs
- 3.The suit should be set down for hearing and disposal
- Jurisdiction invoked
- Original jurisdiction; application brought under Order 2 Rule 15(a) and (b) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mkare & 515 others v Agricultural Development Corporation (Land Case 16 of 2010) [2014] KEELC 685 (KLR)", Case Analysis (2014). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/685/eng@2014-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.