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ELCDismissedNot stated in judgment (Environment and Land Court suit; Notice of Motion dated 16th August 2015)· [2017] KEELC 2775 (KLR)

Thomas Otieno Abele (Suing On Behalf Of The Estate Of Salome Abele And James Abele Ondiek) v Rose Philgona Onyango [2017] KEELC 2775 (KLR)

Environment and Land Court
24 May 2017
1,416 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan land court ruled that applications to strike out a case can include affidavit evidence unless they rely on one specific legal ground, so the plaintiff's objection failed.

What this practically means

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Executive summary

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Thomas Otieno Abele, suing on behalf of the estates of Salome Awino Abele and James Abele Ondiek, sought a declaration that the 1st Defendant's acquisition of land parcel Kisumu/Koru/599 was fraudulent and a nullity, and an order compelling the 2nd Defendant to issue him a certificate of title. The 1st Defendant filed a notice of motion dated 16th August 2015 under Order 2 Rule 15(1)(b) to (d) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeking to strike out the plaint, contending that the Plaintiff lacked locus as he was not the administrator of James Abele Ondiek's estate, and that the discharge of charge and transfer documents relied on had been issued in error, relating to Nyando/Koru/599 rather than Kisumu/Koru/599. The Plaintiff responded with a preliminary objection arguing that the motion offended Order 2 Rule 15(2) because it was supported by affidavit evidence, that striking out was draconian, and that it offended Article 159 of the Constitution. The court, S.M. Kibunja J, held that the affidavit-evidence prohibition applies only to applications under Order 2 Rule 15(1)(a), and the motion expressly invoked subrules (1)(b) to (d); it did not rely on subrule (1)(a) at all. On Article 159, the court assumed the Plaintiff relied on Article 159(2)(d) but found the motion was grounded in specific provisions of law and therefore not a technicality. The preliminary objection was rejected with costs to the 1st Defendant, allowing the striking-out application to proceed to hearing.

Key legal issues

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01

Whether the 1st Defendant's striking-out motion offended Order 2 Rule 15(2) by being supported by an affidavit

Holding

No. The motion was expressly brought under Order 2 Rule 15(1)(b), (c) and (d) and Section 3A of the Civil Procedure Act, and the affidavit-evidence bar applies only to applications under subrule (1)(a).

Reasoning

The court examined the face of the notice of motion and found it cited subrules (1)(b) to (d), not (1)(a). Order 2 Rule 15(2) in mandatory terms excludes evidence only for applications under subrule (1)(a) (no reasonable cause of action). Since the 1st Defendant did not rely on that limb, the supporting affidavit was admissible and the preliminary objection failed on this ground.

p. 3
02

Whether the notice of motion offended Article 159 of the Constitution

Holding

No. The motion was founded on specific provisions of law and set out its grounds, so it could not be said to be based on procedural technicality.

Reasoning

The Plaintiff did not specify how the motion offended Article 159. The court assumed the reliance was on Article 159(2)(d) (justice administered without undue regard to procedural technicalities) but found the motion was anchored on specific legal provisions and stated its grounds, hence not a technicality-driven application. The objection was therefore dismissed with costs to the 1st Defendant.

p. 3

Legal principles established

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  • Only applications under Order 2 Rule 15(1)(a) are barred from being supported by affidavit evidence; applications under subrules (1)(b)-(d) may be supported by affidavits

Court orders

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  1. 1.The Plaintiff's preliminary objection to the 1st Defendant's notice of motion dated 16th August 2015 is rejected with costs to the 1st Defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)(a), (b), (c), (d) and 15(2)
  • Civil Procedure ActSection 3A
  • Constitution of Kenya, 2010Article 159, including 159(2)(d)

Cases cited (2)

  • Kenya Commercial Bank –V- Suntra Investment Bank Ltd
    [2015] eKLR
  • Transcend Media Group Limited –V- Independent Electoral & Boundaries Commission (IEBC)
    [2015] eKLR
Jurisdiction invoked
Order 2 Rule 15 of the Civil Procedure Rules 2010 and Article 159 of the Constitution of Kenya, 2010

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, "Thomas Otieno Abele (Suing On Behalf Of The Estate Of Salome Abele And James Abele Ondiek) v Rose Philgona Onyango [2017] KEELC 2775 (KLR)", Case Analysis (2017). Not stated in judgment (Environment and Land Court suit; Notice of Motion dated 16th August 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2775/eng@2017-05-24

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