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ELCDismissedNot stated in the judgment as provided· [2018] KEELC 1565 (KLR)

Laly Furnishing House Limited v Kenya National Highways Authority & another [2018] KEELC 1565 (KLR)

Environment and Land Court
19 July 2018
EOE. O. Obaga
505 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to dismiss a land compensation claim, ruling an NLC title revocation does not by itself kill a suit with triable issues.

What this practically means

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Executive summary

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The plaintiff sued the defendants seeking compensation for property taken for construction of the interchange on the Nairobi Southern Bypass, filing suit on 28th September 2015. After filing, the title to the suit property was recommended for revocation pursuant to the National Land Commission's constitutional mandate to review grants. The defendants filed a notice of motion dated 14th August 2017 seeking to strike out the suit on the ground that the revocation had taken away the substratum of the suit. The plaintiff opposed through a replying affidavit and preliminary objection, contending the application was an abuse of court process, that the NLC's action had not ousted the court's jurisdiction, and that the NLC was rubber-stamping an illegal action. Justice E. O. Obaga framed a single issue: whether the suit should be struck out. Applying the D.T. Dobie test that a pleading may only be struck out if it is so hopeless that no amendment can redeem it, the court noted that only part of the suit property encroached on the bypass, that the Ministry of Lands and roads engineers had asked the plaintiff to resurvey and excise the encroaching section, and that the defendants had annexed no documents showing the basis for the NLC's recommendation to revoke the entire title. The court held the suit raised triable issues, dismissed the defendants' application with costs to the plaintiff, and ordered accordingly on 19th July 2018 at Nairobi.

Key legal issues

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01

Whether the plaintiff's suit should be struck out following the recommended revocation of the suit property's title by the NLC

Holding

The application was dismissed because the suit raises triable issues; revocation of title did not render the suit hopeless or beyond redemption by amendment

Reasoning

The court applied the D.T. Dobie test that a pleading is struck out only if it is so hopeless that not even amendment can revive it. The court observed that only part of the suit property encroached on the Southern Bypass and that the defendants annexed no documents showing the basis on which the NLC recommended revocation of the entire property. Accordingly, triable issues remained and striking out was unwarranted.

p. 1

Legal principles established

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  • A pleading may only be struck out if it is so hopeless that no amendment can save it

Court orders

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  1. 1.Dismissal of the defendants' notice of motion dated 14th August 2017 seeking to strike out the plaintiff's suit
  2. 2.Costs of the application to the plaintiff

Authorities

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Cases cited (1)

  • D.T Dobie & Company (Kenya) Limited Vs Joseph Mbaria Muchina & Another
    (1980) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes

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, "Laly Furnishing House Limited v Kenya National Highways Authority & another [2018] KEELC 1565 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1565/eng@2018-07-19

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