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 judgment (application dated 16th March 2012 in suit filed 17th October 2011)· [2016] KEELC 536 (KLR)

Leonard Njiru Njogu v Obed Gachoki Difatha & another [2016] KEELC 536 (KLR)

Environment and Land Court (High Court as stated in judgment)
30 September 2016
BOB.N. Olao
1,497 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to throw out a defence claiming ancestral land ownership, ruling such claims deserve a full trial, not summary dismissal.

What this practically means

#

Executive summary

#
The plaintiff, registered proprietor of land parcel No. Ngariama/Ngiriambu/2461, sued for eviction of the defendants whom he alleged were trespassing on the suit land, seeking eviction, costs, interest and any other relief. The defendants filed a brief joint statement of defence admitting the descriptive parts of the plaint, averring that the plaintiff's registration was illegal, un-procedural and fraudulent, and asserting that the land is their ancestral land on which they have always lived, denying trespass. The plaintiff brought a Chamber Summons dated 16th March 2012 under Order 2 Rule 15(1) of the Civil Procedure Rules seeking dismissal of the defence as disclosing no proper defence, being frivolous, scandalous, vexatious, a delaying tactic and an abuse of process. Ruling on 30th September 2016, Olao J reviewed the strike-out principles in D.T. Dobie & Company (Kenya) Ltd v Joseph Mbaria Muchina, Caill Zeiss Stiftung, Patel v E.A. Cargo Handling Services and Fremar Construction, holding that striking out pleadings is a draconian step reserved for the clearest of cases, to be applied sparingly, and that a triable issue is one raising a prima facie case for trial, not one that must succeed. Although the pleadings could have been better drafted, the court found the defence raised a serious triable issue - the claim of ancestral ownership and long residence - which required investigation at trial, and the defence was neither frivolous, scandalous, vexatious nor an abuse of process, having been filed promptly. The application was dismissed with each party bearing their own costs.

Key legal issues

#
01

Whether the defence should be summarily dismissed under Order 2 Rule 15(1)

Holding

The application was dismissed; the defence disclosed a serious triable issue and was neither frivolous, scandalous, vexatious nor an abuse of process

Reasoning

Applying D.T. Dobie and Patel v E.A. Cargo Handling, the court held that striking out is draconian and reserved for the clearest of cases. Although brief and capable of improvement, the defence pleaded fraud in the registration process and asserted ancestral ownership and long residence, raising issues requiring investigation at trial. Matters such as the plaintiff's purchase and title are also for trial.

p. 3
02

Definitions of frivolous, scandalous and vexatious pleadings

Holding

The court adopted standard definitions: a frivolous pleading is groundless or fanciful; a scandalous one is offensive or abusive; a vexatious one lacks bona fides and causes unnecessary anxiety and expense

Reasoning

Drawing on Pleadings: Principles and Practise by Sir Jacob and Goldrein, the court defined each term and found the defence did not fall within any category, nor was it a delaying tactic, having been promptly filed on 31st October 2011.

p. 3

Legal principles established

#
  • The power to strike out pleadings is draconian and must be exercised only in the clearest of cases, sparingly, and without dealing with the merits
  • A triable issue is not one that will necessarily succeed but one raising a prima facie case that should go to trial

Court orders

#
  1. 1.The plaintiff/applicant's Chamber Summons dated 16th March 2012 is dismissed
  2. 2.Each party to meet their own costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 47, 50 and 159
  • Civil Procedure RulesOrder 2 Rule 15(1)(a)(b)(c)(d)

Cases cited (4)

  • D.T. Dobie & Company (Kenya) Ltd vs Joseph Mbaria Muchina & Another
    1982 K.L.R 1
  • Caill Zeiss Stiftung vs Ranjuer & Keel Ltd & Others (No. 3)
    (1970) Ch. D 506
  • Patel vs E.A Cargo Handling Services Ltd
    1974 E.A 75
  • Fremar Construction Co. Ltd vs Minakash N. Shah
    C.A Civil Appeal No. 85 of 2002 NBI
Jurisdiction invoked
Order 2 Rule 15(1)(a)(b)(c)(d) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Leonard Njiru Njogu v Obed Gachoki Difatha & another [2016] KEELC 536 (KLR)", Case Analysis (2016). Not stated in judgment (application dated 16th March 2012 in suit filed 17th October 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/536/eng@2016-09-30

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