Emfil Limited v Attorney General & 423 others (Environment & Land Case 113 of 2015) [2017] KEELC 2243 (KLR)
The bottom line
#Kenya's High Court struck out the defences of over 300 parties claiming land under titles already declared void, confirming they had nothing to defend.
What this practically means
#Executive summary
#Key legal issues
#Effect of prior judgments (HCCC 181 of 2007 and Civil Appeal No 314 of 2012) on the defences
The prior decisions confirm the plaintiff's title and declared parallel titles null and void; the defences raise no triable issue
Justice Sergon declared titles issued to intruders on the plaintiff's land irregular, unlawful, null and void, and the Court of Appeal quashed the gazette notice revoking the plaintiff's title by certiorari, mandamus and prohibition. Defendants who acquired titles after 2010, and after the 2010 judgment, claim under titles already declared of no legal effect. That judgment operates in rem and binds them; a bonafide purchaser defence is unavailable since sellers had nothing to sell. The allegation that the plaintiff's title was unlawfully acquired fails because no court-ordered revocation steps were taken.
Procedural objections: chamber summons rather than notice of motion, and failure to specify the Order 2 rule 15 sub-rule
Neither omission is fatal; the court invokes article 159(1) to avoid procedural technicality
The court invoked article 159(1) of the Constitution, which mandates it not to give undue regard to procedural technicalities, holding the defendants knew what case they had to meet so the form of application caused no prejudice. Similarly, although the application under Order 2 rule 15 failed to specify sub-rule (a), (b), (c) or (d), the grounds on the face of the application showed it was not brought under 15(a), and no prejudice was demonstrated by the defendants.
Scope of the power to strike out pleadings under Order 2 rule 15 and D.T Dobie
The power should be exercised after considering all facts but without embarking on the merits; defences that are frivolous, vexatious or an abuse of process fall to be struck out
The court adopted the D.T Dobie & Co (K) Ltd v Muchina formulation that striking out is exercised only after the court has considered all facts, without expressing opinions on merits. Applying Order 2 rule 15(1)(b)-(d), the court found the defences either pleaded bonafide purchase under titles already nullified, or alleged unlawful acquisition of the plaintiff's title without any court decision to that effect, so neither set raised a triable issue.
Legal principles established
#- A judgment declaring titles void operates in rem, so persons claiming under titles declared of no legal effect cannot raise a defence of bonafide purchaser for value without notice
- Where the original grantee had violated the terms of the grant, revocation of the grant must be effected through an order of the court, and absent such steps a party cannot allege the plaintiff's title was unlawfully acquired
Court orders
#- 1.The two applications dated 28th September 2016 and 1st February 2017 are allowed as prayed
- 2.The defences of the defendants on record are struck out and judgment is entered for the plaintiff as prayed in the plaint (as sought in the applications)
- 3.Costs of the applications to be in the cause (as sought)
- Jurisdiction invoked
- Not expressly stated; the court invoked article 159(1) of the Constitution 2010 and Order 2 rule 15 of the Civil Procedure Rules, striking out defences and entering judgment as prayed in the plaint
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Emfil Limited v Attorney General & 423 others (Environment & Land Case 113 of 2015) [2017] KEELC 2243 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2243/eng@2017-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.