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ELCDismissedRuling on Notice of Motion dated 28/7/2017 (application dated 7/11/2016) in the principal suit, Kitale ELC· [2017] KEELC 986 (KLR)

Ngurakapel Ng’iro v Alexander A. Reuben [2017] KEELC 986 (KLR)

Environment and Land Court
19 October 2017
1,658 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The defendant in a land suit filed a notice of motion seeking to strike out the plaintiff's suit as scandalous, frivolous, vexatious and an abuse of the court process, contending that Kitale ELC No. 75 of 2015 existed between the same parties over the same subject matter, West Pokot/Chemwochoi/269. The plaintiff opposed, arguing that he is not a party to the earlier suit (which was brought by the defendant here against the plaintiff's brothers, who are not administrators of the estate of the plaintiff's late father Ngiro Chachakin), that the application was filed before the plaint was amended, and that the amended plaint now pleads adverse possession rather than fraud. The court identified the governing framework as Order 2 Rule 15 of the Civil Procedure Rules, correcting the applicant's erroneous citation of Order 3 rule 15. Guided by the Dev Surinder Kumar Bij and Transcend Media Group decisions on what is scandalous, frivolous and vexatious, the court held that striking out ordinarily turns on the merits of the cause of action rather than the mere pendency of a related suit. On comparison of the two suits, it found that although the land was the same and the claims related, the parties and cause of action were not identical: the plaintiff here is not a defendant in ELC No. 75 of 2015, and his claim could stand independently. The court also noted the application predated the amended plaint. The application dated 7/11/2016 was dismissed with costs.

Key legal issues

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01

Whether this suit is res judicata-like duplication of Kitale ELC No. 75 of 2015 warranting striking out

Holding

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

Reasoning

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.

p. 3
02

The legal framework for striking out pleadings

Holding

Order 2 Rule 15 of the Civil Procedure Rules governs striking out, notwithstanding the applicant's mistaken citation of Order 3 rule 15

Reasoning

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.

p. 1
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Effect of the amended plaint on the striking-out application

Holding

The application, filed before amendment, cannot be sustained against the amended plaint which now invokes adverse possession

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated 7/11/2016 is dismissed
  2. 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

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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, "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.