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ELCDismissedELC No. 1097 of 2015· [2018] KEELC 1657 (KLR)

Garden Chicken Limited v Attorney General & 7 Others [2018] KEELC 1657 (KLR)

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

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Kenya's Environment and Land Court refused to remove a landowner from a property dispute, confirming that weak-looking claims deserve a full hearing, not early dismissal.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Milimani, delivered by Obaga J on 31 July 2018, determines a Notice of Motion by the sixth defendant seeking striking out of the plaintiff's suit against it under Order 2 rule 15(1)(a) of the Civil Procedure Rules. The sixth defendant argued that it was not privy to the contract under which the plaintiff purchased LR No. 7149/115, that the plaint disclosed no reasonable cause of action against it, and that the claim did not relate to use, title or occupation of land, depriving the court of jurisdiction. The plaintiff opposed, contending that the sixth defendant was the registered owner of the suit property, that the property was sold by public auction in which the plaintiff was the highest bidder following suits in the Machakos High Court, that the sixth defendant benefited from the auction proceeds, and that the plaintiff's title was rendered null and void after the mother title was annulled for fraudulent subdivisions. The court framed one issue: whether the suit against the sixth defendant was so hopeless as to be struck out summarily. It held that the sixth defendant was central to the claim, that the claim flowed from title to land within the court's jurisdiction, and that striking-out power is exercised sparingly where not even an amendment can save the claim. The application was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether the suit against the sixth defendant should be struck out under Order 2 rule 15(1)(a)

Holding

The application fails; the claim against the sixth defendant is the genesis of the plaintiff's claim and no effective remedy can be granted without the sixth defendant's presence

Reasoning

The sixth defendant was the registered owner of LR No. 7149/115, sold at public auction in which the plaintiff was the highest bidder, and the sixth defendant benefited from the proceeds. The plaintiff's title was rendered null and void after the mother title was annulled for fraudulent subdivisions. The claim against the sixth defendant is therefore not hopeless and should go to full trial.

p. 1
02

Whether the Environment and Land Court has jurisdiction over the claim

Holding

The court has jurisdiction because the claim flows from title to land

Reasoning

The sixth defendant argued that the claim did not relate to use, title and occupation of land and so the ELC lacked jurisdiction. The court held that the claim arises from the annulment of the mother title and the resultant nullification of the plaintiff's title to LR No. 7149/115, which places the dispute squarely within the court's jurisdiction.

p. 1

Legal principles established

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  • The power to strike out pleadings is exercised sparingly and only in the clearest of cases where no amendment can save the claim
  • A pleading disclosing a semblance of a cause of action should be left to be ventilated at hearing; the court should not closely examine documents to determine whether a cause of action is disclosed

Court orders

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  1. 1.The sixth defendant's Notice of Motion dated under Order 2 rule 15(1)(a) seeking striking out of the suit against the sixth defendant is dismissed
  2. 2.Costs of the application awarded to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 rule 15(1)(a)

Cases cited (1)

  • Odhiambo Achillah T/a Achilla T.O & Co. Advocates v Kenneth Wabwire Akide T/A Akide & Co. Advocates and 3 others
    (2015) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2)(b) over disputes relating to use, title and occupation of land; application brought under Order 2 rule 15(1)(a) of the Civil Procedure Rules

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, "Garden Chicken Limited v Attorney General & 7 Others [2018] KEELC 1657 (KLR)", Case Analysis (2018). ELC No. 1097 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1657/eng@2018-07-31

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