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ELCDismissedNot stated in the extract· [2017] KEELC 933 (KLR)

Daudi Kiptugen v Commissioner of Lands & 6 others [2017] KEELC 933 (KLR)

Environment and Land Court
19 October 2017
877 words in judgment
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The bottom line

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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

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Executive summary

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The plaintiff, Daudi Kiptugen, applied under Order 2, Rule 15 of the Civil Procedure Rules for the striking out of the 4th and 6th defendants' defences and counterclaims and entry of judgment against them, contending that the pleadings disclosed no reasonable cause of action or defence and were an abuse of process, and that the certificates of registration of business names relied on were fabricated or forged. In a supporting affidavit he alleged that records relating to his parcel had been falsified, noting that the 4th defendant's allotment letter was issued on 24.6.1999 although the company was only incorporated on 1.12.2010. The defendants opposed, arguing the application was incompetent and brought to delay a fair hearing. The court (A. Ombwayo, J) noted that on a subrule (1)(a) ground no evidence is admissible, and held the plaintiff had grossly violated the rule by giving evidence. On the merits, the court found the 4th defendant had pleaded particularized fraud against the plaintiff's title and counterclaimed for cancellation of the certificate of lease and eviction; both sides claim title to Eldoret Municipality Block 7/154, so all have a cause of action. The 6th defendant's claim of fraud, mistake and misrepresentation in the issuance of title was also held to raise a reasonable cause of action and defence. The court found the pleadings neither scandalous nor abusive and dismissed the application with costs to the defendants on 19 October 2017 at Eldoret.

Key legal issues

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01

Whether no-evidence rule under Order 2 rule 15(2) was violated

Holding

The plaintiff grossly violated subrule (2) by swearing a supporting affidavit giving evidence on a subrule (1)(a) ground

Reasoning

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.

p. 2
02

Whether the 4th defendant's defence and counterclaim discloses a cause of action

Holding

Yes - both parties claim title to Eldoret Municipality Block 7/154 and fraud is particularized, so the matters must be tried

Reasoning

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.

p. 2
03

Whether the defences are an abuse of process

Holding

No - the pleadings are not scandalous, vexatious, frivolous or an abuse of court process

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The plaintiff's application to strike out the 4th and 6th defendants' defences and counterclaims is dismissed
  2. 2.Costs of the application awarded to the defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 2, Rule 15(1)(a), (b), (c), (d), (2), (3)
Jurisdiction invoked
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, "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.