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ELCDismissedConsolidated suit (specific case number not stated in judgment)· [2017] KEELC 1510 (KLR)

United States International University v Maestro Connections Health Systems Ltd & 4 others [2017] KEELC 1510 (KLR)

Environment and Land Court
22 September 2017
3,103 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that a land vendor must stay in a lawsuit when the buyer's title is challenged, and refused to strike it out.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of L.R No. 15997/2, purchased the original land and Plot No. 12608 from ICEA Lion Life Assurance Company Ltd (5th defendant) in 1999 for Kshs. 90,000,000. In its further amended plaint, the plaintiff joined the 5th defendant, seeking an alternative declaration that it was an innocent purchaser without notice of any defect in the vendor's title, and compensation at market value should the court nullify its title. The 1st to 4th defendants challenged the plaintiff's title as fraudulently acquired; the 2nd defendant counter-claimed, alleging the chain of transfers (from itself to D.P.S International Limited, then to the 5th defendant, then to the plaintiff) was forged and invalid. The 5th defendant moved to strike out its own name from the suit under Orders 1, 2 and 3 of the Civil Procedure Rules, contending it was improperly joined, that no reasonable cause of action was disclosed against it, and that any claim was time barred under section 4(1) of the Limitation of Actions Act. The plaintiff and the 1st and 2nd defendants opposed. Okong'o J held that striking out is a draconian remedy exercisable only in the clearest of cases (D.T. Dobie; J.P. Machira); that since the plaintiff's root of title was under attack, the vendor from whom it derived title was a necessary party for effectual and complete adjudication; and that a reasonable cause of action need only be well founded in law and fact, not certain to succeed. The limitation argument was rejected on the basis of the fraud/discovery principle advanced by the plaintiff. The application was dismissed with costs to the plaintiff and the 1st, 2nd and 4th defendants.

Key legal issues

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01

Whether the power to strike out pleadings should be exercised in this case

Holding

No - striking out is draconian and reserved for the clearest of cases; the plaint discloses a reasonable cause of action against the 5th defendant

Reasoning

The court restated the settled position that the power to strike out pleadings is exercised with great circumspection and only in the clearest of cases, citing D.T. Dobie and J.P. Machira. The dispute over ownership of the suit property, the 2nd defendant's counter-claim alleging forgery and fraud down the chain of title, and the plaintiff's alternative prayer for compensation from its vendor, all meant a trial on the merits was warranted.

p. 3
02

Whether the 5th defendant was a necessary and properly joined party

Holding

Yes - the vendor of land under attack is a necessary party

Reasoning

Applying Order 1 rules 3 and 10 and the tests in Deported Asians Property Custodian Board and Werrot & Co., the court held that the plaintiff's root of title had been questioned, the 5th defendant sold the suit property to the plaintiff, the 5th defendant was mentioned adversely in the pleadings, and the 2nd defendant's counter-claim sought nullification of the transfer from the 5th defendant to the plaintiff. Its presence was necessary for effectual and complete adjudication.

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Whether the plaintiff's claim against the 5th defendant is time barred

Holding

No - the argument lacks merit

Reasoning

The 5th defendant argued the claim was time barred under section 4(1) of the Limitation of Actions Act since the purchase occurred in 1999. The plaintiff contended the claim was founded on fraud, whose cause of action accrues on discovery. The court agreed with the plaintiff's submissions and authorities, finding the limitation argument had no merit, though it did not elaborate extensively.

p. 5

Legal principles established

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  • A company which sold a property in dispute in a suit is a necessary party to that suit
  • A reasonable cause of action need not be one that must succeed; it is sufficient that it is well founded in law and fact
  • Where a registered proprietor's root of title is under challenge, the proprietor must go beyond the title instrument to prove ownership

Court orders

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  1. 1.The 5th defendant's Notice of Motion dated 20th February 2017 is dismissed
  2. 2.Costs of the application to the plaintiff and the 1st, 2nd and 4th defendants

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 Rule 3; Order 1 Rule 10(1)-(2); Order 2 Rule 15(1)(a); Order 3 Rule 6
  • Limitation of Actions Actsection 4(1)
  • Registration of Titles Act, Chapter 281 Laws of Kenya (now repealed)section 24 (proviso)
  • Evidence Actsection 112

Cases cited (7)

  • D.T. Dobie & Company (K) Ltd. vs. Joseph Mbaria Muchina & Another
    Civil Appeal No. 37 of 1978 [1982] KLR 1
  • J.P. Machira vs. Wangethi Mwangi
    Civil Appeal No. 179 of 1997 (unreported)
  • Deported Asians Property Custodian Board vs. Jaffer Brothers Limited
    (1999) 1 E.A 55 (SCU)
  • Pravin Bowry vs. John Ward and another
    (2015) eKLR
  • Werrot and Company Ltd. and others vs. Andrew Doughlas Gregory and others
    Nairobi (Milimani) HCCC No. 2363 of 1998 (1998) LLR 2848 (CCK)
  • George Mbiti Kiebia & Another vs. Isaya Theuri M'lintari & Another
    (2014) eKLR
  • Safi Petroleum Products Ltd. vs. Abdirahiman Abdi
    [2007] eKLR
Jurisdiction invoked
Order 1 Rule 10 and Order 2 Rule 15(1)(a) of the Civil Procedure Rules, 2010

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, "United States International University v Maestro Connections Health Systems Ltd & 4 others [2017] KEELC 1510 (KLR)", Case Analysis (2017). Consolidated suit (specific case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1510/eng@2017-09-22

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