Daudi Kiptugen v Commissioner of Lands & 6 others [2017] KEELC 933 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to strike out land-defendants' fraud defences because competing title claims must be decided at a full trial, not on paper.
What this practically means
#Executive summary
#Key legal issues
#Whether no-evidence rule under Order 2 rule 15(2) was violated
The plaintiff grossly violated subrule (2) by swearing a supporting affidavit giving evidence on a subrule (1)(a) ground
The court held that striking out for disclosing no reasonable cause of action requires the pleading to be hopeless and frivolous, and under subrule (1)(a) no evidence is admissible. The plaintiff instead gave sworn evidence, including allegations that the defendants' registration certificates were fabricated and that allotment records were falsified. The court treated this as a gross violation of the rule.
Whether the 4th defendant's defence and counterclaim discloses a cause of action
Yes - both parties claim title to Eldoret Municipality Block 7/154 and fraud is particularized, so the matters must be tried
The 4th defendant pleaded that the plaintiff's title was procured by fraud, claimed to be the lawful owner of the suit parcel, and counterclaimed for cancellation of the plaintiff's certificate of lease and eviction. Since all parties hold title to the same property and fraud is particularized, these are triable issues that cannot be resolved on a striking-out application.
Whether the defences are an abuse of process
No - the pleadings are not scandalous, vexatious, frivolous or an abuse of court process
The court applied the test that a pleading is abusive only if frivolous, scandalous, intended to delay fair trial or res judicata. Applying it to the 4th and 6th defendants' pleadings, which raise particularized fraud, mistake and misrepresentation in the issuance of the plaintiff's title, the court found nothing abusive and held the plaintiff had not shown the defence was unarguable.
Legal principles established
#- On an application under Order 2 rule 15(1)(a), no evidence is admissible; the pleading must be judged on its own face and the grounds stated concisely
- A pleading is an abuse of the process of the court only if it is frivolous, scandalous, meant to delay fair trial or res judicata; competing titles raise triable issues
Court orders
#- 1.The plaintiff's application to strike out the 4th and 6th defendants' defences and counterclaims is dismissed
- 2.Costs of the application awarded to the defendants
- Jurisdiction invoked
- Order 2, Rule 15 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daudi Kiptugen v Commissioner of Lands & 6 others [2017] KEELC 933 (KLR)", Case Analysis (2017). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/933/eng@2017-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.