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ELCDismissedChamber Summons Application dated 14th July 2006 (suit at Mombasa)· [2017] KEELC 1052 (KLR)

Highland Plaza Limited v Safaricom Limited & 3 others [2017] KEELC 1052 (KLR)

High Court of Kenya
19 September 2017
CYC. Yano
1,730 words in judgment
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The bottom line

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Kenya's High Court refused to strike out a defence in a land dispute, ruling that competing title claims must be resolved at a full trial, not on paperwork.

What this practically means

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Executive summary

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The Plaintiff, claiming to be the registered proprietor of the suit property, applied by Chamber Summons dated 14th July 2006 under Order VI Rule 13(1)(b)(c)(d) of the former Civil Procedure Rules and Section 3A of the Civil Procedure Act for striking out the Defendant's defence as frivolous, an abuse of process and intended to delay fair disposal of the suit. The Plaintiff asserted that the third parties' interests, under whom the Defendant claims, were fictitious and tainted by fraud. The Defendant, which had erected a telecommunications mast after taking a lease from Evans Ondieki Anyona in July 2005, opposed the application, contending that its documents of title were authentic, that allegations of fraud against non-joined parties required viva voce trial, and that genuine triable issues existed. After canvassing by written submissions, the court applied the settled principles for striking out pleadings drawn from DT Dobie v Muchina, Henkel Polymer and Samuel Ndungu Mukunya: the power is exercised sparingly, without expressing views on the merits, and suits should be sustained rather than terminated. The court observed that the pleadings disclosed two sets of registered proprietors of the suit land — the Plaintiff and the third parties Chuma Adhman Nyundo and Jackson Kipngetich — and that which of them holds a valid title is a triable issue best resolved at trial with the third parties. Holding that the defence raised triable issues, the court sustained the defence, dismissed the application dated 14th July 2006 with costs, and directed the dispute to full trial.

Key legal issues

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Whether the defence should be struck out as frivolous and an abuse of process

Holding

The application was dismissed; the defence raises bona fide triable issues including which of two competing registered proprietors holds a valid title

Reasoning

Applying the settled principles in DT Dobie v Muchina and other authorities, the court held that striking out is reserved for plain and obvious cases. The pleadings disclosed two sets of registered proprietors of the suit land, and the Defendant's possession rests on a lease with the third parties. Whether the Plaintiff's or the third parties' title is valid is a triable issue that cannot be summarily resolved on affidavit evidence, so the defence was sustained.

p. 3

Legal principles established

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  • The power to strike out pleadings should be exercised sparingly, only on plain and obvious cases, without embarking on the merits of the case

Court orders

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  1. 1.The application dated 14th July 2006 is dismissed with costs
  2. 2.The Defendant's defence is sustained as it raises triable issues

Authorities

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Legislation

  • Civil Procedure Rules (former edition, now repealed)Order VI Rule 13(1)(b)(c)(d)
  • Civil Procedure Rules (current)Order 2 Rule 15(1)(b)(c)(d)
  • Civil Procedure ActSection 3A

Cases cited (3)

  • DT Dobie & Company Kenya Limited – v- Muchina
    (1982) KLR
  • Henkel Polymer Co. Ltd & 2 others
    (2004) eKLR
  • Samuel Ndungu Mukunya –vs- Nation Media Group & another
    (2012) eKLR
Jurisdiction invoked
Order VI Rule 13(1)(b)(c)(d) of the former Civil Procedure Rules (now Order 2 Rule 15(1)) and Section 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Highland Plaza Limited v Safaricom Limited & 3 others [2017] KEELC 1052 (KLR)", Case Analysis (2017). Chamber Summons Application dated 14th July 2006 (suit at Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1052/eng@2017-09-19

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