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ELCDismissedNot stated in the judgment· [2018] KEELC 987 (KLR)

Martin Robin Kinuthia v Amit Aggarwal [2018] KEELC 987 (KLR)

Environment and Land Court
29 October 2018
AOA. Ombwayo
1,140 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that a lawsuit can only be thrown out early if it is completely hopeless — claims about an illegal property takeover deserved a full trial.

What this practically means

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Executive summary

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The defendant, Amit Aggarwal, applied by notice of motion dated 19.12.2017 for the striking out of the plaintiff's plaint on the ground that it disclosed no reasonable cause of action, with costs. The suit concerned an alleged forceful takeover on 11th September 2017 of Plot 2/87 Mitta Street, Eldoret Town, and sought a declaration that the takeover was illegal, a permanent injunction, eviction of the defendant, special damages, costs and interest. The plaintiff had earlier obtained ex parte status quo orders on 14th September 2017, but at the inter partes hearing his counsel stated the plaintiff had voluntarily moved out, and the interlocutory application was marked spent. The defendant argued that the plaint prayers were spent and that nothing remained since the suit property was registered in his name. The plaintiff, opposing, pointed to an amended plaint quantifying special damages at Kshs.284,640 and the absence of any defence. The court set out the striking-out power under Order 2 Rule 15 of the Civil Procedure Rules 2010, described it as a discretionary, draconian summary process to be used only in clear-cut cases where the cause of action is incurably bad, and applied the D.T. Dobie test that a suit must be hopeless and beyond redemption by amendment before summary dismissal. Holding that the plaint seeking a declaration of illegality, eviction and special damages was not hopeless, the court dismissed the application with costs on 29th October 2018.

Key legal issues

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01

Test for striking out pleadings under Order 2 Rule 15

Holding

The power is discretionary and must be exercised judiciously in very clear-cut cases; a plaint with even a semblance of a cause of action curable by amendment should go to trial.

Reasoning

The court traced the power to Order 2 Rule 15 of the Civil Procedure Rules 2010 and the inherent jurisdiction. It adopted the D.T. Dobie principles that summary dismissal requires a suit that is plainly hopeless, weak beyond redemption and incurable by amendment. Because the plaint alleges an illegal forceful takeover, seeks a declaration, eviction and special damages quantified at Kshs.284,640, it cannot be described as hopeless.

p. 2
02

Effect of the plaintiff vacating the suit property and the interlocutory application being marked spent

Holding

Voluntary vacation does not extinguish the claims for declaration, eviction and special damages; the suit remains fit for trial.

Reasoning

The defendant argued that once the interlocutory application was marked spent, the plaint prayers were spent or disclosed no cause of action. The court held that although the plaintiff had moved out, an amended plaint quantifying special damages had been filed, no defence had yet been filed, and the claims required interrogation at trial. The application was therefore dismissed with costs.

p. 2

Legal principles established

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  • A suit should not be summarily dismissed unless it plainly and obviously discloses no reasonable cause of action and is incurable by amendment.
  • Striking out is a draconian discretionary power exercisable only in clear-cut cases where the cause of action is incurably bad.

Court orders

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  1. 1.The defendant's application dated 19.12.2017 seeking to strike out the plaint is dismissed
  2. 2.Costs of the application awarded to the plaintiff

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 2 Rule 15

Cases cited (1)

  • D.T. Dobie & Company Kenya Ltd Vs. Joseph Mbaria Muchina
    CA No. 37 of 1978
Jurisdiction invoked
Order 2 Rule 15 of the Civil Procedure Rules 2010 and the inherent jurisdiction of the court

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, "Martin Robin Kinuthia v Amit Aggarwal [2018] KEELC 987 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/987/eng@2018-10-29

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