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ELCDismissedNot stated in judgment (suit concerning L.R No. Makuyu/Makuyu Block 11/1086)· [2018] KEELC 2287 (KLR)

Gathaite Farmers Co-operative Society Limited v Nicholas Kigo Ndungu & 17 others [2018] KEELC 2287 (KLR)

Environment and Land Court
26 July 2018
JKJ G Kemei
2,466 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 refused to strike out a land fraud suit, ruling that striking out pleadings is a drastic step reserved for plain and obvious cases only.

What this practically means

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Executive summary

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The Plaintiff Society, through Arcadius Njora Chege, sued the Defendants seeking a declaration that L.R No. Makuyu/Makuyu Block 11/1086 (6.882 Ha) was fraudulently registered in the joint names of the 1st and 2nd Defendants without the Society's knowledge or consent, later subdivided and transferred to the 3rd to 18th Defendants, and that the titles be cancelled and the land reverted to the Plaintiff. The Defendants applied to strike out the suit as incompetent, contending the Society never authorized the suit, that there was no valid verifying affidavit, and that Chege was neither a member nor an official of the Society, relying on a Cooperative Tribunal ruling in CTC No. 358 of 2012 and an undated letter from the Sub County Cooperative Officer. Chege maintained he was a member and Chairman since 1997, challenged the letter as suspect, and relied on Articles 48 and 50 on access to justice. The court held that 'incompetence' is not a ground under Order 2 Rule 15, that the pleaded grounds fell under Rule 15(b), and that the plaint, which pleads fraud, discloses a cause of action. The supporting affidavit was sworn by Stephen Mwangi, who produced no authorization and whose capacity was described as that of a busy body. Striking out being a drastic remedy reserved for plain and obvious cases, the application was dismissed with costs to the Plaintiffs. The suit proceeds to trial; the Defendants had filed no defence.

Key legal issues

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01

Whether the suit ought to be struck out for incompetence, lack of authorization and want of a valid verifying affidavit

Holding

The application fails. 'Incompetence' is not a ground under Order 2 Rule 15; the pleaded grounds fall under Rule 15(b), and the suit discloses a cause of action in fraud. The deponent of the supporting affidavit lacked demonstrated capacity to act for the Defendants.

Reasoning

The court examined Order 2 Rule 15 and found the ground of 'incompetence' not envisaged, treating the pleaded grounds as falling under 15(b) (scandalous, frivolous or vexatious). The plaint sets out fraud against the 1st and 2nd Defendants, establishing a cause of action. Stephen Mwangi, who swore the supporting affidavit, was shown to have no demonstrated authority or relationship with the parties. Striking out being drastic, the suit was allowed to proceed.

p. 4
02

Capacity of Stephen Mwangi to swear the supporting affidavit for the Defendants

Holding

Stephen Mwangi is not a party, has not deponed authority of the Plaintiff, and his capacity is not easily ascertainable; he appears to be a busy body.

Reasoning

The court noted that Mwangi deponed he was Secretary to the Management Committee but produced no authorization, employment or relationship with the Plaintiff. He was not a party to the suit, and the undated letter he relied on from the Sub County Cooperative Officer was challenged as suspect. His intervention was viewed as an attempt to aid the Defendants escape a formal response to serious allegations.

p. 4

Legal principles established

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  • Striking out is a drastic remedy to be invoked only in plain and obvious cases and exercised with extreme caution
  • An application to strike out under Order 2 Rule 15(1)(a) must concisely state the grounds on which it is made and no evidence is admissible on that ground
  • A deponent to a supporting affidavit must demonstrate the authority, employment or relationship entitling him to swear it on behalf of a party

Court orders

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  1. 1.The Defendants' application to strike out the suit was dismissed
  2. 2.Costs of the application awarded to the Plaintiffs
Jurisdiction invoked
Original civil jurisdiction over land claims; striking out application under Order 2 Rule 15 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, "Gathaite Farmers Co-operative Society Limited v Nicholas Kigo Ndungu & 17 others [2018] KEELC 2287 (KLR)", Case Analysis (2018). Not stated in judgment (suit concerning L.R No. Makuyu/Makuyu Block 11/1086). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2287/eng@2018-07-26

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