Gathaite Farmers Co-operative Society Limited v Nicholas Kigo Ndungu & another [2018] KEELC 2097 (KLR)
The bottom line
#A Kenyan land court refused to strike out a cooperative society's fraud claim, ruling that striking out suits is a drastic step reserved for plain and obvious cases.
What this practically means
#Executive summary
#Key legal issues
#Whether 'incompetence' is a ground for striking out a suit under Order 2 Rule 15
It is not an enumerated ground; the pleaded grounds were treated as falling under Order 2 Rule 15(1)(b) (scandalous, frivolous or vexatious)
The court noted the application sought striking out for 'incompetence', a ground not envisaged by Order 2 Rule 15. However, the actual grounds pleaded - lack of authorization, defective verifying affidavit, and lack of membership - were mapped onto the rule's limb (b) as alleging the suit to be scandalous, frivolous or vexatious, and considered on that basis.
Capacity of Stephen Mwangi to depone and prosecute the striking-out application
He lacked capacity: he is not a party, produced no authorization and no evidence of his relationship with the Society, and appeared to be a busy body aiding the Defendants to avoid filing a defence
The court examined whether Mwangi had authority from the Society to swear the supporting affidavit and bring the application. He produced only an undated, challenged letter from the Sub County Cooperative Officer. His role in the case was 'not easily ascertainable', and the court inferred he sought to assist the Defendants escape the serious fraud allegations without a formal defence.
Whether the suit discloses a cause of action
Yes - the plaint sets out fraud in the transfer of the suit land, and the Defendants having filed no defence, the suit is fit for trial, not striking out
The plaint alleges the 1st and 2nd Defendants conspired and deceived the Land Registrar Muranga to register the suit property in their joint names without the Society's knowledge or consent. No defence was filed. Applying D T Dobie v Muchina, a suit with a semblance of a cause of action should go forward. The dispute over Chege's membership is a triable issue, not one for determination on an application.
Effect of the Defendants' failure to enter appearance or file a defence
The Defendants are deemed to have admitted the allegations as at the date of the ruling, having been served and having let the prescribed time lapse
The court observed that despite service of plaint and summons, the Defendants never entered appearance or filed a defence, and no default judgment had been entered despite a request under Order 10 Rule 6. In the absence of a defence, the allegations stood effectively unchallenged as at the date of the ruling.
Legal principles established
#- Striking out is a drastic remedy, to be invoked only in plain and obvious cases and exercised with extreme caution; a suit showing a semblance of a cause of action should proceed to trial
- Where an application under Order 2 Rule 15(1)(a) is brought, no evidence is admissible and the application must concisely state the grounds; 'incompetence' is not a ground enumerated under the rule
- A person who is not a party and who does not demonstrate authority from the plaintiff lacks capacity to swear affidavits in support of an application to strike out the plaintiff's suit
Court orders
#- 1.The Defendants' application seeking to strike out the suit is dismissed
- 2.Costs of the application awarded to the Plaintiffs
- Jurisdiction invoked
- Original civil jurisdiction over land claims; application under Order 2 Rule 15 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gathaite Farmers Co-operative Society Limited v Nicholas Kigo Ndungu & another [2018] KEELC 2097 (KLR)", Case Analysis (2018). CTC No. 358 of 2012 (suit striking-out application, Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2097/eng@2018-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.