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ELCDismissedNot stated in the judgment· [2017] KEELC 499 (KLR)

Mohamed Abdulbasiet v Collins Kibet Borruett & another [2017] KEELC 499 (KLR)

Environment and Land Court of Kenya
24 November 2017
AOA. Ombwayo
1,398 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Eldoret land court refused to strike out a Kshs.13.5 million property sale dispute, ruling that genuine disagreements about payment must be resolved at a full trial.

What this practically means

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Executive summary

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The 1st defendant, Collins Kibet Barnett, applied by notice dated 18.2.2016 for the plaintiff's suit to be struck out as vexatious and for removal of a caution placed on land reference Eldoret Municipality Block 14/2462. He deponed that under a sale agreement of 13.7.2015 the agreed price was Kshs.13,500,000/= and that he had paid Kshs.13,890,000/= - Kshs.390,000/= more than the agreed sum - in four tranches, so the plaint alleging an outstanding balance of Kshs.5,500,000/= was vexatious. The plaintiff, through a replying affidavit, asserted that only Kshs.8,000,000/= reached him because the agreed mode of payment was through the account of M/s Ngigi Mbugua & Co. Advocates, and that Mr. Ngigi Mbugua, the advocate handling the transaction, remitted only part of the monies to him. He maintained he remained an unpaid seller with live contractual remedies, that transfer of the land before full payment breached the agreement and LSK conditions of sale, and that triable issues existed; he also intended to amend the plaint to join the advocate as a co-defendant or interested party. The court applied Order 2 Rule 15(1) of the Civil Procedure Rules and the principle from Dev Surinder Kumar Bij v Agility Logistics Limited that striking out is warranted only where it is clear and obvious the plaint discloses no reasonable cause of action. Finding that whether the agreement's terms were complied with and whether the lawful procedure of transfer was followed are matters for trial, the court held the suit was not frivolous. The application was dismissed with costs on 24 November 2017, and the suit was left to proceed to full hearing.

Key legal issues

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Whether the plaint is frivolous and vexatious and liable to be struck out under Order 2 Rule 15(1) of the Civil Procedure Rules

Holding

The suit is not frivolous as it raises genuine triable issues as to whether the terms of the sale agreement were complied with and whether the lawful procedure of transfer was followed.

Reasoning

The court set out the statutory test in Order 2 Rule 15(1) and the authoritative gloss that striking out is reserved for clear and obvious cases. It identified two substantive issues raised by the plaint - compliance with the agreement's terms and the lawfulness of the transfer - which require evidence at trial. Because the plaintiff asserted he had not received the full purchase price of Kshs.13,500,000/= while the 1st defendant claimed to have paid Kshs.13,890,000/= through the advocate's account, the dispute could not be resolved summarily.

p. 3

Legal principles established

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  • A pleading should only be struck out in clear cases where it is clear and obvious that the issues raised can neither be substantiated nor disclose a reasonable cause of action
  • Where triable issues are raised in the pleadings, the suit must go to full trial rather than be struck out

Court orders

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  1. 1.The 1st defendant's application dated 18.2.2016 seeking to strike out the suit is dismissed
  2. 2.Costs of the application awarded to the plaintiff
Jurisdiction invoked
Original civil jurisdiction over the suit; striking-out application under Order 2 Rule 15 of the Civil Procedure Rules

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, "Mohamed Abdulbasiet v Collins Kibet Borruett & another [2017] KEELC 499 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/499/eng@2017-11-24

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