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ELCDismissedNot stated in the judgment· [2018] KEELC 134 (KLR)

Alphonce Ngugi Wambua v Patrick Ndunda Wambua & 4 Others [2018] KEELC 134 (KLR)

Environment and Land Court
2 October 2018
CMC. G. Mbogo
701 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The 1st Defendant/Applicant, supported by the 2nd and 3rd Defendants, filed a notice of motion dated 16th March 2018 under Order 2 Rule 15(1)(b), Order 50 Rule 10 of the Civil Procedure Rules, Sections 3 and 3A of the Civil Procedure Act and Sections 13(7) and 19 of the Environment and Land Court Act, seeking striking out of the Plaintiff's suit as frivolous, vexatious and an abuse of process, removal of a caution registered against parcel LR Ukia/Kilala/524, and costs in the cause. Counsel for the Defendants submitted that the Plaintiff had twice placed cautions on the land and that the suit was peppered with frivolous and vexatious issues intended to frustrate the 1st Defendant's dealings with his parcel. Plaintiff's counsel opposed, submitting the application lacked legal basis and that striking out is reserved for the clearest of cases, citing Lalji t/a Vakkep Building Contractors v Casousel Ltd (1989) KLR 386, though the authority itself was not supplied to the court. The court, disposing of the application on written submissions, found that the plaint questioned how the subdivision of the suit land was carried out such that the 1st Defendant acquired a larger share from their deceased father. It held that the pleadings disclosed a reasonable cause of action and could not be characterised as scandalous, frivolous or vexatious. The application was dismissed with each party bearing their own costs. Judgment was delivered at Makueni on 2nd October 2018 by Mbogo C.G, Judge.

Key legal issues

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01

Whether the plaint discloses no reasonable cause of action and is frivolous or vexatious

Holding

The plaint disclosed a reasonable cause of action as the Plaintiff was questioning how the subdivision of the suit land was carried out

Reasoning

The court examined the plaint and found the Plaintiff was challenging the subdivision of the suit land whereby the 1st Defendant acquired a larger share from their deceased father. Since a reasonable cause of action was disclosed, the plaint could not be characterised as scandalous, frivolous or vexatious. Striking out is a drastic remedy reserved for the clearest of cases, and the application did not meet that threshold.

p. 2
02

Whether the caution on LR Ukia/Kilala/524 should be removed

Holding

The request for removal of the caution was refused as the entire application lacked merit

Reasoning

The removal of the caution was sought within the same notice of motion as the striking out of the suit. Having found that the suit disclosed a reasonable cause of action, the court held the application lacked merit and dismissed it, thereby declining to order removal of the caution. No separate analysis of the caution was undertaken.

p. 2

Legal principles established

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  • The discretion to strike out a suit should only be exercised in the clearest of cases
  • A plaintiff should not be driven from the judgment seat unless his case is unarguable; courts should strive to maintain suits rather than dismiss them

Court orders

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  1. 1.The 1st Defendant's notice of motion application dated 16th March 2018 is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)(b)
  • Civil Procedure RulesOrder 50 Rule 10
  • Civil Procedure ActSections 3, 3A
  • Environment and Land Court Act No. 19 of 2011Sections 13(7) and 19

Cases cited (1)

  • Lalji t/a Vakkep Building Contractors V Casousel Ltd
    (1989) KLR 386
Jurisdiction invoked
Sections 3, 3A Civil Procedure Act, Order 2 Rule 15(1)(b) and Order 50 Rule 10 Civil Procedure Rules, Sections 13(7) and 19 of the Environment and Land Court Act No. 19 of 2011

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, "Alphonce Ngugi Wambua v Patrick Ndunda Wambua & 4 Others [2018] KEELC 134 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/134/eng@2018-10-02

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