Masha Birya & 5 others v Vipingo Estate Limited & 17 others [2018] KEELC 2825 (KLR)

Environment and Land Court

28 June 2018

JOJ.O. Olola

1,702 words in judgment

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The bottom line

The Environment and Land Court struck out a 551-plaintiff land claim because, even after amendment, the pleading remained too vague and confusing to proceed to trial.

What this practically means

Executive summary

By an Amended Plaint dated 14th September 2017, 551 Plaintiffs sued 18 Defendants, seeking a mandatory order compelling compliance with land rules and proper settlement plans for natives, investigation and possible nullification of titles held by several Defendants, protective measures against gas, chemical and pollution damage to natives, crops and livestock, and a prohibitory order against interference with public amenities within the Settlement Scheme, plus costs. Before trial, the 10th and 11th Defendants moved to strike out the Plaint as unintelligible, scandalous, frivolous and vexatious, and the 2nd and 3rd Defendants sought striking out for ambiguity, unintelligibility, prolixity and confusion, contending the amendments had not cured the defects. The Plaintiffs opposed, arguing the applications were vexatious and aimed at delaying a fair trial under Article 50, particularly since the Court had already granted leave to amend. The Court, per J.O. Olola J, restated Order 15 Rule 1 of the Civil Procedure Rules and applied the Trust Bank definition of frivolous and vexatious pleadings, weighed against D.T. Dobie's principle that suits curable by amendment should be sustained. Examining the Amended Plaint from all angles, the Court found it remained completely ambiguous, vague and unintelligible, with no discernible nexus between the Defendants and the orders sought or between the properties claimed, and quoted Odunga J that pleadings are judged as they stand on record. The Court struck out the Amended Plaint and allowed both striking-out applications with costs.

Key legal issues

Whether the Amended Plaint, though previously amended with the Court's leave, remained fit for trial

Holding

It did not; the pleading remained ambiguous, vague and unintelligible with no nexus between the Defendants and the relief sought, and was struck out under Order 15 Rule 1 of the Civil Procedure Rules

Reasoning

The Court had already granted leave to amend on 11th May 2017 in line with D.T. Dobie's injunction to sustain rather than terminate suits. Even judged as amended, the 54-paragraph pleading contained generalized, unintelligible historical allegations with no discernible nexus between the Defendants and the orders sought, nor any relationship between the property claimed and the Defendants' property. Since striking-out applications are decided on the pleadings as filed, and particulars had not cured the defects, the suit was struck out.

p. 4

The legal test for striking out a pleading under Order 15 Rule 1 of the Civil Procedure Rules

Holding

A pleading may be struck out if it discloses no reasonable cause of action, is scandalous, frivolous or vexatious, may prejudice, embarrass or delay fair trial, or is otherwise an abuse of process

Reasoning

The Court invoked Order 15 Rule 1 of the Civil Procedure Rules and adopted Ringera J's definition in Trust Bank Ltd v Amin Company Ltd: a pleading is frivolous when without substance or fanciful and vexatious when lacking bona fides and hopeless or offensive. The Court balanced this against the D.T. Dobie principle that suits should be sustained where curable by amendment, but found the amended plaint incurable.

p. 3

Legal principles established

A suit should only be struck out if it is beyond redemption and incurable by amendment; while it can be cured by amendment it should not be struck out.
A pleading is frivolous when without substance, groundless or fanciful, and vexatious when it lacks bona fides and is hopeless or offensive, causing the opposite party unnecessary anxiety, trouble or expense.
Striking-out applications are decided on the pleadings as they stand on record, not as they might appear once particulars are furnished.

Court orders

1.The Amended Plaint is struck out
2.The two applications dated 11th March 2017 and 11th May 2017 are allowed with costs

Authorities

Legislation

Civil Procedure RulesOrder 15 Rule 1
Constitution of KenyaArticle 50

Cases cited (3)

Trust Bank Limited –vs Amin Company Ltd & Another
(2000) KLR 164
D.T Dobie & Company (Kenya) Ltd –vs- Joseph Mbawa Muchina
(1980) eKLR
Peter Mulwa Wanjiku –vs Michael Owuor
(2012) eKLR

Jurisdiction invoked: Original civil jurisdiction over land and environment matters (court not stated to rest jurisdiction on a specific provision in this judgment)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Masha Birya & 5 others v Vipingo Estate Limited & 17 others [2018] KEELC 2825 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2825/eng@2018-06-28

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