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ELCDismissedNot stated in judgment (ruling on Notice of Motion dated 7th February 2014)· [2017] KEELC 1909 (KLR)

Kent Libiso & another v Cirkon Trust Co. Ltd & 3 others [2017] KEELC 1909 (KLR)

High Court of Kenya (Environment and Land Division, Nairobi)
15 September 2017
SOS. Okong'o
1,857 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling by S. Okong'o J. determines the 4th defendant's Notice of Motion dated 7th February 2014, brought under Order 2 Rules 15(1)(a) and (2), Order 51 Rule 1 of the Civil Procedure Rules 2010 and section 3A of the Civil Procedure Act, seeking striking out of the amended plaint dated 24th May 2012 and dismissal of the plaintiffs' suit against him. The application, unsupported by affidavit, contended that no contractual relationship existed between the plaintiffs and the 4th defendant over L.R No. 1/811, making him an improper party. The plaintiffs opposed, arguing the 4th defendant was the registered owner of the suit property whose interests would be affected by any final orders, and that he was a beneficiary of fraud committed by the 1st to 3rd defendants, so no good title passed to him. The court restated the settled principle that the power to strike out pleadings is draconian and must be exercised with great circumspection, only in the clearest of cases, citing D.T. Dobie, Chatte and J.P. Machira. It then held that the 4th defendant was a necessary party since the plaintiffs sought cancellation of his title and award of the property to the 1st plaintiff, a dispute incapable of conclusive determination without him. Although there was no privity of contract, the claim against him sounded in fraud and illegality of his title, disclosing a reasonable cause of action, which need not be one bound to succeed. The application was dismissed with costs to the plaintiffs.

Key legal issues

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01

Whether the plaint discloses a reasonable cause of action against the 4th defendant

Holding

It does; the plaintiffs allege the 4th defendant's title is tainted with fraud and illegality, which is a cause of action well founded in law and fact notwithstanding absence of privity of contract

Reasoning

The court noted the claim against the 4th defendant is not contractual but rests on the allegation that his title, derived through the 2nd defendant, is null and void for fraud and illegality. A reasonable cause of action need not be one bound to succeed; it suffices that it is well founded in law and fact. The pleaded fraud allegations met that threshold, so striking out was unwarranted.

p. 3
02

Whether the 4th defendant is a necessary party to the suit

Holding

Yes; he is the registered owner of the suit property and the plaintiffs seek cancellation of his title, so the dispute cannot be conclusively determined without him

Reasoning

The suit property is registered in the 4th defendant's name and the plaintiffs seek cancellation of the transfers and vesting of the property in the 1st plaintiff. Any final orders would directly affect his interest. Applying Order 1 rule 3 and the necessary-party principles, the court held he would be prejudiced if left out and that the court cannot conclusively determine the dispute without him.

p. 3
03

The standard for exercising the discretion to strike out pleadings

Holding

The power should be exercised with great circumspection and only in the clearest of cases

Reasoning

Relying on Chatte v National Bank of Kenya, D.T. Dobie & Co Ltd v Joseph Mbaria Muchina and J.P. Machira v Wangethi Mwangi, the court reiterated that striking out is a draconian remedy to be used sparingly, only where a suit is hopeless and beyond redemption and incurable by amendment. This was not such a case.

p. 2

Legal principles established

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  • The power to strike out pleadings is draconian and should be exercised only in the clearest of cases
  • A reasonable cause of action need not be one that must succeed; it suffices that it is well founded in law and fact
  • A person whose registered interest in suit property would be affected by the orders sought is a necessary party

Court orders

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  1. 1.The 4th defendant's Notice of Motion dated 7th February 2014 is dismissed
  2. 2.Costs of the application awarded to the plaintiffs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 2 Rules 15(1)(a) and (2)
  • Civil Procedure Rules 2010Order 51 Rule 1
  • Civil Procedure Rules 2010Order 1 rule 3
  • Civil Procedure Actsection 3A

Cases cited (5)

  • Chatte vs. National Bank of Kenya Ltd.
    Civil Appeal No. 50 of 1996 (unreported)
  • 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
Jurisdiction invoked
Order 2 Rules 15(1)(a) and (2), Order 51 Rule 1 of the Civil Procedure Rules 2010 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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Cite this brief

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Cite this brief

Caselaw, "Kent Libiso & another v Cirkon Trust Co. Ltd & 3 others [2017] KEELC 1909 (KLR)", Case Analysis (2017). Not stated in judgment (ruling on Notice of Motion dated 7th February 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1909/eng@2017-09-15

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