Thomas Otieno Abele (Suing On Behalf Of The Estate Of Salome Abele And James Abele Ondiek) v Rose Philgona Onyango [2017] KEELC 2775 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 1st Defendant's striking-out motion offended Order 2 Rule 15(2) by being supported by an affidavit
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).
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.
Whether the notice of motion offended Article 159 of the Constitution
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.
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.
Legal principles established
#- 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
#- 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
- Jurisdiction invoked
- Order 2 Rule 15 of the Civil Procedure Rules 2010 and Article 159 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.