Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment· [2015] KEELC 489 (KLR)

Mathias Dabasa v Francis Chege [2015] KEELC 489 (KLR)

Environment and Land Court
15 May 2015
OAO. A. Angote
1,320 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Plaintiff, registered proprietor of plot Lake Kenyatta 11/379 following allocation by the Settlement Fund Trustees in 1997 and issuance of a title deed in 2006, applied by notice of motion dated 2nd July 2014 for striking out of the Defendant's defence as disclosing no reasonable defence and, in the alternative, for mandatory and prohibitory injunctions restraining the Defendant from interfering with or entering the suit property. The Defendant deponed that he entered the land in 2003 through one Husuni Alawi Mohamed, with the Plaintiff's knowledge and upon the Plaintiff surrendering the property, and counterclaimed for a declaration that the Plaintiff holds the title as constructive trustee for the Defendant. The court, O. A. Angote J, held that an application under Order 2 Rule 15(1) to strike out a pleading for disclosing no reasonable defence cannot be determined on affidavit evidence, the court being confined to the pleadings. Since the Plaintiff's claim required examination of documentary evidence, and since the Plaintiff had not sought to strike out the counterclaim - which raised a triable issue of constructive trust arising from the same transaction - the application failed. On injunctions, the court applied Locabal International Finance Ltd v Agro Export, holding that a mandatory injunction issues at the interlocutory stage only in clear cases, and this was not such a case; the Defendant had been in occupation, and the balance of convenience favoured him, with better title to be determined at trial. The application was dismissed with costs on 15th May 2015.

Key legal issues

#
01

Whether the Defence should be struck out for disclosing no reasonable defence

Holding

The application failed because the court could not rely on affidavit evidence under Order 2 Rule 15(2), and the Defence raises triable issues including the counterclaim.

Reasoning

Order 2 Rule 15(1) permits striking out of pleadings disclosing no reasonable cause of action or defence, but Rule 15(2) restricts the court to the pleadings themselves. The Plaintiff's claim depends on documentary evidence annexed to his affidavit to establish superior title. Further, the Plaintiff sought to strike out only the Defence and not the Counterclaim, which raises a triable issue of constructive trust arising from the same transaction. The application was therefore fatally defective.

p. 3
02

Whether a mandatory or prohibitory injunction should issue pending trial

Holding

Neither injunction could issue because the Defendant has been in occupation, the case is not a clear one for mandatory injunction, and the balance of convenience favours the Defendant.

Reasoning

The parties dispute when the Defendant entered the land - 2003 according to the Defendant, 2007 according to the Plaintiff - but occupation by the Defendant is common ground. A mandatory injunction at the interlocutory stage requires special circumstances and a clear case. Who holds better title is a matter for trial. With the Defendant in occupation, the balance of convenience lies with him and a prohibitory injunction cannot issue.

p. 3

Legal principles established

#
  • An application to strike out a pleading under Order 2 Rule 15(1) for disclosing no reasonable cause of action or defence must be determined on the pleadings alone, without affidavit evidence.
  • A mandatory injunction will only issue at the interlocutory stage in clear cases.
  • Where a defence and counterclaim arise from the same transaction, an application that seeks to strike out only the defence without the counterclaim is fatal.

Court orders

#
  1. 1.The Plaintiff's Application dated 2nd July 2014 is dismissed
  2. 2.Plaintiff to pay costs of the Application

Authorities

#

Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)
  • Civil Procedure RulesOrder 2 Rule 15(2)

Cases cited (1)

  • Locabal International Finance Ltd Vs Agro Export & Others
    (1986) I ALL &R.901
Jurisdiction invoked
Original jurisdiction under the Civil Procedure Rules (Order 2 Rule 15) over a land dispute; specific constitutional/statutory basis not stated in the judgment.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mathias Dabasa v Francis Chege [2015] KEELC 489 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/489/eng@2015-05-15

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