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ELCDismissedNairobi ELC Case (Notice of Motion dated 6/12/2016 in the suit)· [2017] KEELC 1913 (KLR)

Suchan Investments Limited v Dipa Pulling [2017] KEELC 1913 (KLR)

Environment and Land Court
22 September 2017
BEB. M. Eboso
1,633 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to strike out a landowner's defence, ruling that a property dispute must proceed to full trial.

What this practically means

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Executive summary

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Suchan Investments Limited, the plaintiff, moved the court by Notice of Motion dated 6 December 2016 seeking to strike out the defendant Dipa Pulling's statement of defence under Order 2 Rule 15(1) of the Civil Procedure Rules on all four statutory grounds: no reasonable defence, scandalous/frivolous/vexatious pleading, prejudice to fair trial, and abuse of process. The plaintiff contended that the parties jointly own LR No. 209/19106; that in ELC Case No. 200 of 2008 the defendant obtained an interim injunction conditioned on a personal undertaking to pay damages; and that the Court of Appeal's judgment in Civil Appeal No. 46 of 2012 - which quashed the gazette notice declaring the property a national monument - discharged that injunction, crystallizing the undertaking. The defendant opposed, arguing the application was premature and that the Court of Appeal judgment concerned only the judicial review suit and did not discharge the interim orders in ELC Case No. 200 of 2008. The court held that a striking-out application combining sub-rule (1)(a) with other grounds renders the supporting affidavit inadmissible; the affidavit of Kamal Chandulal Shah therefore stood struck out. Even on the merits, applying D.T. Dobie and allied authorities, the court found the Court of Appeal judgment did not determine ELC Case No. 200 of 2008 or discharge the injunction, and the defendant's averment that the undertaking had not crystallized raised a triable issue. The application was dismissed with costs to the defendant.

Key legal issues

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01

Election of grounds under Order 2 Rule 15(1)

Holding

Combining sub-rule (1)(a) with (b), (c) and (d) renders the supporting affidavit inadmissible and it stands struck out

Reasoning

The court reasoned that Order 15(2) bars evidence on applications under sub-rule (1)(a), so any affidavit filed in an application invoking that sub-rule, whether alone or combined with others, is inadmissible. The plaintiff's invocation of all four grounds meant its supporting affidavit could not be considered.

p. 2
02

Whether the defence discloses a triable issue

Holding

The averment that the personal undertaking had not crystallized is a triable issue; striking out was not warranted

Reasoning

Applying D.T. Dobie and related authorities, the court held that striking-out power should be exercised only in plain and obvious cases. The Court of Appeal judgment in Civil Appeal No. 46 of 2012 quashed the gazette notice in the judicial review suit but did not determine ELC Case No. 200 of 2008 or discharge the interim injunction, so the defendant's averment was not frivolous.

p. 3

Legal principles established

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  • A party moving the court to strike out pleadings under Order 15(1) must elect to move either under sub-rule (1)(a) alone or under any of the other sub-rules; evidence is inadmissible on an application under sub-rule (1)(a)
  • An affidavit attached to an application brought under sub-rule (1)(a) alone or in combination with other rules is inadmissible

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 6/12/2016 is dismissed
  2. 2.The defendant shall have costs of the Application

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)
  • Civil Procedure RulesOrder 15 Rule 15(1) and (2)
  • Civil Procedure RulesOrder VI Rule 13(1) (former rules)

Cases cited (4)

  • D.T. DOBIE & COMPANY (KENYA) LTD V JOSEPH MBARIA MUCHINA & ANOTHER
  • NURU CHEMIST LIMITED & ANOTHER V NATIONAL BANK OF KENYA
    (2008) eKLR
  • YAYA TOWERS LIMITED V TRADE BANK LIMITED (IN LIQUIDATION)
    (2000) eKLR
  • PAOLA MURI V GIAN BATISTA MURI & ANOTHER
    CA No. 59 of 1999
Jurisdiction invoked
Order 2 Rule 15(1) 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, "Suchan Investments Limited v Dipa Pulling [2017] KEELC 1913 (KLR)", Case Analysis (2017). Nairobi ELC Case (Notice of Motion dated 6/12/2016 in the suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1913/eng@2017-09-22

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