Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedCivil Suit No 467 of 2011· [2017] KEELC 2217 (KLR)

Mzuri Malau Mlai & 4 others v Blue Horizon Properties Limited & 2 others [2017] KEELC 2217 (KLR)

Environment and Land Court
11 July 2017
LKL. KOMINGOI
1,163 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Mombasa court refused to throw out a land dispute at the door, ruling that suits with even a faint claim must be heard in full.

What this practically means

#

Executive summary

#
The 1st defendant moved the court by Notice of Motion dated 28th July 2016 under Order 2 Rule 15(a)(b) and (d) of the Civil Procedure Rules 2010 and Sections 3A and 63(e) of the Civil Procedure Act, seeking striking out of the plaintiffs' plaint, dismissal of the entire suit, and costs. It argued that the suit disclosed no reasonable cause of action, was scandalous, frivolous and vexatious, and an abuse of court process; that the plaintiffs had never held a lease or letter of allotment over the suit land and had tendered no documents to prove their allegations of fraud; and that the 1st defendant's title was legally and procedurally acquired under the Land Registration Act and Land Act and protected by Articles 40 and 64 of the Constitution. The plaintiffs opposed, relying on D.T. Dobie & Co (K) Ltd v Muchina, urging that the suit had a semblance of a cause of action and should go to full trial. The 2nd defendant did not participate. The sole issue was whether the suit should be struck out. Applying the Dobie principles and Article 159(2)(d) of the Constitution, the court held that striking out is a summary remedy not to be exercised on a minute examination of documents, and that a suit with a semblance of a cause of action must proceed. The 1st defendant failed to show the suit was hopeless, given the plaintiffs' claim of long occupation of the land. The application was dismissed with costs to the plaintiffs, and the suit was set down for hearing on its merits.

Key legal issues

#
01

Whether the plaint discloses no reasonable cause of action or is frivolous, vexatious or an abuse of process under Order 2 Rule 15

Holding

The application failed; the plaintiffs' claim that they have been on the suit land for many years deserves a hearing on the merits

Reasoning

The court applied the Dobie principles that striking out is a summary jurisdiction not to be exercised after a minute examination of documents, and that a suit with a mere semblance of a cause of action curable by amendment should go to trial. The 1st defendant did not demonstrate the suit was hopeless. Article 159(2)(d) on procedural technicalities and Article 50(1) on fair hearing reinforced the right to be heard on the merits.

p. 3

Legal principles established

#
  • No suit ought to be summarily dismissed unless it is plainly and obviously hopeless and beyond redemption by amendment; a suit showing a mere semblance of a cause of action should proceed to trial
  • Justice shall be administered without undue regard to procedural technicalities

Court orders

#
  1. 1.The Notice of Motion dated 28th July 2016 is dismissed
  2. 2.Costs of the application awarded to the plaintiff/respondent

Authorities

#

Legislation

  • Civil Procedure Rules 2010Order 2 Rule 15(a)(b) and (d), Order 2 Rule 15(2)
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Land Registration Act, Number 3 of 2012Sections 24, 25, 26, 27 and 28
  • Land Act, Number 6 of 2012Section (1)(a) and 7
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)
  • Constitution of Kenya, 2010Articles 40 and 64 (cited in grounds)

Cases cited (4)

  • D.T. DOBIE & COMPANY (K) LIMITED –VS- MUCHINA
    (1982) KLR
  • WENLOCK –VS- MOLONEY
    (1965) I WLR 1238
  • J.P. MACHIRA VS- WANGECHI MWANGI AND NATION NEWSPAPERS
    CA Civil Appeal No.179 of 1997
  • PAOLO MUIRU –V- GIANI BATISTA MURRI AND ANOTHER
    CA Civil Appeal No. 59 of 1999
Jurisdiction invoked
Order 2 Rule 15(a)(b) and (d) of the Civil Procedure Rules 2010, Sections 3A and 63(e) of the Civil Procedure Act, and all enabling provisions of the law

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mzuri Malau Mlai & 4 others v Blue Horizon Properties Limited & 2 others [2017] KEELC 2217 (KLR)", Case Analysis (2017). Civil Suit No 467 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2217/eng@2017-07-11

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