Industrial & Commercial Development Corportion v Reuben Arap Simotwo & 20 others [2017] KEELC 3171 (KLR)
The bottom line
#A Kenyan court refused to end a land dispute early, ruling that claims of long occupation must be fully tried before ownership can be decided.
What this practically means
#Executive summary
#Key legal issues
#Validity of the preliminary objection on limitation
The preliminary objection was invalid because it depended on evidence that 12 years had elapsed
Applying the Mukisa Biscuits test, a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded are correct. The defendants' objection that over 12 years had elapsed since 10th July 2003 required ascertainment of facts by evidence not on record when the objection was filed, so it failed.
Whether summary judgment should be entered under Order 36 rule 1
Summary judgment was refused because the defence raised triable issues on limitation and adverse possession
Although the defendants admitted the plaintiff's ownership, they asserted continuous occupation since 1973 and had a pending application to amend the defence to plead limitation and extinguishment of title by adverse possession. Whether those defences succeed is a matter for trial; a triable issue need not be one that must succeed.
Whether the defence should be struck out under Order 2 rule 15
Striking out was refused; the suit should proceed to trial
Guided by D.T. Dobie, the court should not embark on the merits on a striking-out application. The defence shows a semblance of a defence capable of being cured by amendment through the pending application for leave to amend. Issues whether the plaintiff's land is government land and whether adverse possession can lie were improper to determine at the interlocutory stage.
Whether an affidavit may support a combined striking-out application under Order 2 rule 15(1)(a) and (d)
Yes; inclusion of an affidavit is not prejudicial where the application also relies on ground (d)
Order 2 rule 15(2) bars evidence on applications under sub-rule (1)(a), but the application was also brought under sub-rule (1)(d) (abuse of process), under which evidence is permissible, following Margaret Njeri Mbugua v Kirk Mweya Nyaga.
Legal principles established
#- Even a single triable issue entitles a defendant to defend an action; a triable issue need not be one that must succeed
- A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded are correct; it cannot be raised where facts must be ascertained
- A suit should not be summarily dismissed if it shows even a semblance of a cause of action curable by amendment
Court orders
#- 1.The application dated 20th January 2017 is dismissed
- 2.The Preliminary Objection dated 17th February 2017 is dismissed
- 3.Costs shall be in the cause
- Jurisdiction invoked
- Original civil suit; application under Order 2 rule 15 and Order 36 rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Industrial & Commercial Development Corportion v Reuben Arap Simotwo & 20 others [2017] KEELC 3171 (KLR)", Case Analysis (2017). Not stated in ruling (plaint filed 15th November 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3171/eng@2017-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.