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ELCDismissedNot stated in the extract (Amended Notice of Motion dated 11th December 2013)· [2015] KEELC 600 (KLR)

Michael Kamau & others v Lukas Kimeu Mutevu & 31 others [2015] KEELC 600 (KLR)

High Court of Kenya
18 February 2015
PNP. Nyamweya
1,404 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Defendants filed an Amended Notice of Motion dated 11th December 2013 seeking to strike out the Plaintiffs' Amended Plaint dated 25th August 2000 for failing to disclose a reasonable cause of action, being frivolous, vexatious and an abuse of process, and seeking judgment on their Counterclaim founded on adverse possession of Land Parcel MAKUYU/KAMBITI/BLOCK 1/1-54, 61 & 62. They contended that over 1000 settlers have cultivated the land since 1964, that the Plaintiffs' titles were fraudulently obtained, and that the representative suit was filed without leave or written authority. The Plaintiffs, registered owners alleging trespass, opposed the application, arguing that their claim disclosed a cause of action and that any defects were curable by amendment. P. Nyamweya J, applying Order 2 Rule 15 of the Civil Procedure Rules, held that the Defendants' grounds relied on matters verifiable only by evidence, which is inadmissible on such an application. Applying D.T. Dobie & Company (Kenya) Ltd v Muchina, the court held that striking out should be used sparingly, and that the competing claims of ownership and adverse possession raise clearly triable issues. On the representative suit issue under Order 1 Rule 13, the court held that any deficiency was curable and not grounds for striking out, citing Article 159(2) of the Constitution. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the Amended Plaint discloses no reasonable cause of action warranting striking out under Order 2 Rule 15(1)

Holding

The Plaintiffs' claim of ownership and invasion of their land, against the Defendants' claim of adverse possession, discloses triable issues; striking out was refused

Reasoning

The court noted that under Order 2 Rule 15(2) no evidence is admissible on such an application, yet the Defendants' grounds (entitlement to the suit properties, fraudulent titles, adverse possession) could only be verified by evidence. Relying on D.T. Dobie & Company (Kenya) Ltd v Muchina, striking out should be used sparingly and a suit with a mere semblance of a cause of action should go to full hearing. The competing claims raise clearly triable issues.

p. 2
02

Whether the failure to obtain written authority for a representative suit under Order 1 Rule 13 renders the suit incompetent

Holding

Even if the requirement was not met, it does not render the suit bad in law; curative measures and Article 159(2) favour sustaining the suit

Reasoning

Order 1 Rule 13 requires written authority signed and filed for representative proceedings. However, the court found that non-compliance is not sufficient to justify striking out the entire suit, since leave and directions can cure the defect. Invoking Madan JA's dictum in D.T. Dobie that courts should aim at sustaining rather than terminating suits, and Article 159(2) on procedural technicalities, the court declined to strike out the Plaint.

p. 2

Legal principles established

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  • The power to strike out pleadings should be used sparingly and cautiously; a suit should not be summarily dismissed unless it is beyond redemption and incurable by amendment
  • Under Order 2 Rule 15(2), no evidence is admissible on an application to strike out for failure to disclose a reasonable cause of action; grounds relying on matters verifiable only by evidence are misconceived
  • Procedural technicalities, including defective representation in a representative suit, should not justify striking out where curable, per Article 159(2) of the Constitution

Court orders

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  1. 1.The Defendants' Amended Notice of Motion dated 11th December 2013 is dismissed
  2. 2.Costs of the Notice of Motion to be in the cause

Authorities

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Legislation

  • Limitation of Actions Actsection 38
  • Civil Procedure RulesOrder 2 Rule 15(1) and 15(2)
  • Civil Procedure RulesOrder I Rule 13(1) and (2)
  • Constitution of KenyaArticle 159(2)

Cases cited (2)

  • D.T. Dobie & Company (Kenya) Ltd. v. Muchina
    [1982] KLR 1
  • D.T. Dobie & Co. (K) Ltd vs Muchina
    [1982] K.L.R.1
Jurisdiction invoked
Order 2 Rule 15(1) of the Civil Procedure Rules; Article 159(2) of the Constitution

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, "Michael Kamau & others v Lukas Kimeu Mutevu & 31 others [2015] KEELC 600 (KLR)", Case Analysis (2015). Not stated in the extract (Amended Notice of Motion dated 11th December 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/600/eng@2015-02-18

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