Ngurakapel Ng’iro v Alexander A. Reuben [2017] KEELC 986 (KLR)
The bottom line
#A Kenyan court refused to strike out a land dispute suit, ruling that related claims over the same property are not duplicates if the parties and grievances differ.
What this practically means
#Executive summary
#Key legal issues
#Whether this suit is res judicata-like duplication of Kitale ELC No. 75 of 2015 warranting striking out
No - though the subject matter land (West Pokot/Chemwochoi/269) is the same, the parties and cause of action differ, so striking out is unwarranted
The plaintiff in Kitale ELC No. 75 of 2015 (Alexander A. Reuben) is the defendant here, but the defendants in that suit are the plaintiff's brothers, who are not administrators of the estate of the plaintiff's late father. The plaintiff is not a defendant in that suit, and his claim for cancellation of title/adverse possession can stand independently against the registered proprietor.
The legal framework for striking out pleadings
Order 2 Rule 15 of the Civil Procedure Rules governs striking out, notwithstanding the applicant's mistaken citation of Order 3 rule 15
The court corrected the citation and set out Order 2 Rule 15(1), under which pleadings may be struck out if they disclose no reasonable cause of action, are scandalous, frivolous or vexatious, prejudice fair trial, or amount to an abuse of process; the court retains discretion to dismiss, stay or enter judgment.
Effect of the amended plaint on the striking-out application
The application, filed before amendment, cannot be sustained against the amended plaint which now invokes adverse possession
The application dated 7/11/2016 predates the amendment and was not directed at the amended pleading; the plaintiff has abandoned the fraud claim and now claims adverse possession. The court declined to comment on the propriety of the amendment since it was not the subject of the application.
Legal principles established
#- Striking out of a suit is determined on the merits of the cause of action, not on the mere pendency of a related suit
- A person is at liberty to file his own suit rather than seek joinder to another suit as a defendant, depending on the cause of action
Court orders
#- 1.The application dated 7/11/2016 is dismissed
- 2.Costs of the application to the plaintiff/respondent
- Jurisdiction invoked
- Order 2 Rule 15 of the Civil Procedure Rules (striking out of pleadings)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngurakapel Ng’iro v Alexander A. Reuben [2017] KEELC 986 (KLR)", Case Analysis (2017). Ruling on Notice of Motion dated 28/7/2017 (application dated 7/11/2016) in the principal suit, Kitale ELC. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/986/eng@2017-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.