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ELCDismissedELC 100 of 2007 (consolidated with ELC No. 326 of 2012 and ELC No. 615 of 2014)· [2017] KEELC 3396 (KLR)

Samvo Limited v Delta Haulage Services Limited & another [2017] KEELC 3396 (KLR)

Environment and Land Court

15 March 2017

EOE.O. Obaga

1,234 words in judgment

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The bottom line

Kenya's Environment and Land Court refused to strike out a landowner's claim, ruling that striking out pleadings is a drastic remedy reserved for the clearest cases.

What this practically means

Executive summary

This Ruling by the Environment and Land Court at Nairobi (E.O. Obaga, J) determined a Notice of Motion dated 30th November 2015 brought by the first defendant under Order 2 Rule 15(c) and (d), Order 11 Rule 7(2) and (b), Order 7 Rule 13, Order 17 Rule 14, Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. The applicant sought striking out of Samvo Limited's original claim together with its documents and affidavits, and an order that the first defendant's defence and counterclaim proceed to hearing. The applicant argued that Samvo Limited had failed to file witness statements and documents and had not complied with pre-trial directions, causing expense and delay. Samvo Limited, through its counsel Stephen Musalia Mwenesi, opposed the application, explaining that delays stemmed from difficulties obtaining documents from the lands ministry and from the applicant's own filing of two subsequent suits over the same disputed property, in which Samvo had to seek joinder. The court held that striking out a pleading is a drastic step reserved for the clearest of cases; the applicant had not shown the claim was so hopeless that amendment could not cure it, and Samvo's non-compliance was amply explained and attributable partly to the applicant's conduct and the consolidation of three suits. The court found no abuse of process, applying the definition in Bullen Leak and Jacob's Precedents of Pleadings. The application was dismissed with costs to the respondents.

Key legal issues

Whether a party's non-compliance with Order 11 pre-trial directions warrants striking out its claim

Holding

No - non-compliance was amply explained and the applicant itself contributed to the delay by filing two subsequent suits over the same property.

Reasoning

The court noted the suit was filed in 2007 but the applicant filed ELC 326 of 2012 and ELC 615 of 2014 without naming Samvo Limited, forcing Samvo to seek joinder and contributing to delay. With the three suits now consolidated, non-compliance with earlier directions could not be held against Samvo. Samvo's counsel explained the delay in obtaining documents from the lands ministry and Samvo showed readiness to undergo pre-trial conference.

p. 2

Whether Samvo Limited's claim is an abuse of the process of the court

Holding

No - the pleadings disclose no intention to delay or abuse the court process.

Reasoning

Relying on the definition in Bullen Leak and Jacob's Precedents of Pleadings (12th Edition), the court held that abuse of process means misuse of the court's machinery for vexation or oppression. On examining Samvo's pleadings, the judge could discern no intention to delay or abuse the process. The claim concerned a genuinely disputed property claimed by three parties and was not so hopeless that it could not be cured by amendment; indeed an amendment application was pending.

p. 2

Legal principles established

Striking out a pleading is a drastic remedy available only in the clearest of cases.
Abuse of process connotes misuse of the court's machinery for vexation or oppression.

Court orders

1.The applicant's Notice of Motion dated 30th November 2015 is dismissed
2.Costs of the application awarded to the Respondents

Authorities

Legislation

Civil Procedure RulesOrder 2 Rule 15(c) and (d)
Civil Procedure RulesOrder 11 Rule 7(2) and (b)
Civil Procedure RulesOrder 7 Rule 13
Civil Procedure RulesOrder 17 Rule 14
Civil Procedure RulesOrder 51 Rule 1
Civil Procedure Act Cap 21 Laws of KenyaSections 1A, 1B and 3A

Jurisdiction invoked: Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21) and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Samvo Limited v Delta Haulage Services Limited & another [2017] KEELC 3396 (KLR)", Case Analysis (2017). ELC 100 of 2007 (consolidated with ELC No. 326 of 2012 and ELC No. 615 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3396/eng@2017-03-15

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