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ELCDismissedNot stated in judgment· [2017] KEELC 1779 (KLR)

Mailua Estates Limited v Pushan Miato & 5 others [2017] KEELC 1779 (KLR)

Environment and Land Court
25 September 2017
COChristine Ochieng
1,510 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kajiado Environment and Land Court refused to end this land dispute early, ruling that claims of ownership and fraud must be tested at a full trial.

What this practically means

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Executive summary

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The Plaintiff, through a Notice of Motion dated 31st January 2017 under Order 13 rule 2 and Order 2 Rule 15(1)(b)(c) and (d) of the Civil Procedure Rules, sought judgment on admission against the 4th Defendant and striking out of the 1st, 2nd and 3rd Defendants' Defence as scandalous, frivolous, vexatious and an abuse of process. The Plaintiff claimed to have purchased the suit land, Kajiado/Mailua/684, at a public auction by National Bank of Kenya in 2004 after the 4th Defendant defaulted on a charge, and complained that the Defendants were subdividing the land pursuant to a tribunal award adopted by the Kajiado Principal Magistrate's Court to which the Plaintiff was not party. The 1st, 2nd and 3rd Defendants asserted ownership, occupation for over 12 years, and fraudulent registration of the 4th Defendant, and relied on a Land Disputes Tribunal award of 200 acres adopted by the SPM's Court; they also raised limitation under sections 4 and 7 of the Limitation of Actions Act. The 4th Defendant disclaimed any interest. The Court framed two issues: whether there was judgment on admission against the 4th Defendant, and whether the Defence was frivolous or abusive. It found both matters raised triable issues requiring oral evidence, applied the principle in UCB v Mukoome Agencies that substantial allegations of fraud raise triable issues, and noted the Plaintiff would suffer no prejudice if the matter went to full trial. The application was disallowed with costs in the cause.

Key legal issues

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01

Whether judgment on admission could be entered against the 4th Defendant

Holding

No - the alleged admissions raise matters requiring oral evidence and the 4th Defendant must be retained in the suit.

Reasoning

The 4th Defendant pleaded lack of capacity and no interest, but annexures to the 3rd Defendant's affidavit showed he confessed at the tribunal that he paid for only 100 acres, with 200 acres belonging to the 1st, 2nd and 3rd Defendants. Ownership disputes could not be resolved on the application, so striking him out or entering judgment on admission was unwarranted.

p. 2
02

Whether the 1st, 2nd and 3rd Defendants' Defence should be struck out

Holding

No - the Defence raises triable issues of ownership and fraud and is not scandalous, frivolous, vexatious or an abuse of process.

Reasoning

The Defence claims ownership, alleges fraudulent registration, and relies on a Land Disputes Tribunal award of 200 acres adopted by the Kajiado SPM's Court. Allegations of fraud raise triable issues entitling a party to be heard. Land is an emotive issue and parties must be heard. The Plaintiff complied with Order 11 and would suffer no prejudice if the matter proceeded to full trial.

p. 3

Legal principles established

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  • Where fraud is alleged, the party alleging it must be given an opportunity to prove it, and a substantial allegation of fraud raises a triable issue entitling the defendant to defend the suit

Court orders

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  1. 1.The Notice of Motion dated 31st January 2017 is disallowed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)(b)(c) and (d)
  • Civil Procedure RulesOrder 13 rule 2
  • Civil Procedure RulesOrder 11
  • Limitation of Actions Actsections 4 and 7

Cases cited (1)

  • UCB Vs Mukoome Agencies
    (1982) HCB22
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; application brought pursuant to Order 13 rule 2 and Order 2 Rule 15(1)(b)(c) and (d) of the Civil Procedure Rules

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, "Mailua Estates Limited v Pushan Miato & 5 others [2017] KEELC 1779 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1779/eng@2017-09-25

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