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ELCDismissedELC No. 397 of 2017· [2017] KEELC 1078 (KLR)

George Mukoma Mwangi v Reuben Kamau Manyeki [2017] KEELC 1078 (KLR)

Environment and Land Court
18 October 2017
JKJ.G. Kemei
2,016 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to strike out a land buyer's defence, ruling disputes over land interests must be decided at trial, not on paperwork.

What this practically means

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Executive summary

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This was a striking-out application under Order 2 rule 15 of the Civil Procedure Rules. The plaintiff applicant, registered as an absolute proprietor of the suit land LOC11/Maragi/4048 (1.21 acres) together with two others, had filed suit on 9/6/2017 seeking an order compelling the defendant to remove a caution lodged on 3/4/2017 claiming a licensee's interest. The defendant responded with a defence filed on 3/7/2017 asserting that he purchased 0.3 acres of the land in 2007 from the plaintiff's deceased father, paid the full purchase price, was given vacant possession, and developed the land; he attached an agreement of sale. The applicant moved to strike out the defence as a general traverse, sham and abuse of process, arguing the inconsistency between the caution's licensee's interest and the defence's purchaser's interest, the death of the vendor, and lack of Land Control Board consent. Both counsel relied on the pleadings. The court applied Order 2 rule 15 and the settled principles from DT Dobie, Nitin Properties and Abubakar Zein Ahmed that striking out is a drastic remedy exercised only in plain and obvious cases. The court held that whether the defendant's interest rests on a licence or a purchase is a matter for trial; the defence raises a bona fide triable issue, is curable by amendment, and the uncontroverted agreement of sale supports it. The Notice of Motion dated 5/7/2017 was dismissed with costs to the respondent.

Key legal issues

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01

Whether the defence is a candidate for striking out under Order 2 rule 15 as vexatious, scandalous or an abuse of process

Holding

The defence raises a bona fide triable issue and cannot be struck out; the alleged inconsistency between the caution (licensee's interest) and the defence (purchaser's interest) is a matter for trial

Reasoning

The court applied Order 2 rule 15 and the DT Dobie principles that a party will not be lightly driven from the seat of judgment. The defence pleads a purchaser's interest supported by an attached agreement of sale that has not been controverted. The plaintiff's own affidavit alludes to the sale, challenging only the absence of Land Control Board consent. Specific performance or refund are triable issues. The defence is curable by amendment and not hopeless.

p. 4

Legal principles established

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  • The power to strike out a pleading is discretionary, not mandatory, and must be exercised with great care and only in the clearest of cases
  • A defence showing a mere semblance of a triable issue or capable of being cured by amendment should not be struck out
  • Whether an interest is premised on a licence or a purchase is a matter of evidence to be canvassed at trial, not on a striking-out application

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 5/7/2017 is dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 2 rule 15

Cases cited (5)

  • D T Dobie (K) Limited Vs Muchina
    (1982) KLR 1
  • Wenlock V Halony & Others
    (1963) WLR 1238
  • Nitin Properties Vs Jagir Singh Kalsi
    NBI CA 132 of 1989
  • Abubakar Zein Ahmed Vs Premier Savings and Finance Company Limited & 4 others
    (2007) eKLR
  • Richard Ncharpi – Vs – IEBC & 2 Others
    [2013] EKLR
Jurisdiction invoked
Not expressly stated; the court exercised its civil jurisdiction under the Civil Procedure Act (Order 2 rule 15, Sections 1A and 1B) to determine a striking-out application

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, "George Mukoma Mwangi v Reuben Kamau Manyeki [2017] KEELC 1078 (KLR)", Case Analysis (2017). ELC No. 397 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1078/eng@2017-10-18

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