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ELCDismissedNot stated in the judgment· [2018] KEELC 2921 (KLR)
Daniel Nkatele Nasha v Jackson Kimeu & others [2018] KEELC 2921 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The Defendants moved the court by Notice of Motion dated 27th September 2016 under Sections 1A, 1B, 3A, 5, 6, 7 and 63(e) of the Civil Procedure Act and Order 2 rule 15(1)(b) and (d) of the Civil Procedure Rules, seeking striking out of the plaint on grounds that the suit, concerning parcel LR No. KAJIADO/KAPUTIEI CENTRAL/509, prejudiced, embarrassed and delayed the fair trial of a related matter pending before the High Court at Machakos (Misc. Civil Application No. 141 of 2012), that the verifying affidavit was manifestly false, and that the plaint was scandalous, frivolous, vexatious and an abuse of court process. The 1st Defendant deposed that the Defendants were bona fide purchasers who paid purchase price which the Plaintiff received but failed to excise and transfer the parcels. The court framed one issue: whether the plaint should be struck out. It recited Order 2 rule 15 and applied the Court of Appeal decisions in Ramji Megji Gudka Ltd v Alfred Morfat Omundi Michira and DT Dobie & Company (Kenya) Ltd v Muchina, which caution that striking-out powers must be exercised sparingly, only in the clearest of cases, without dealing with the merits. Noting that the plaint raised allegations of fraud and that the 6th Defendant in the Counterclaim alleged the Plaintiff sought fraudulently to obtain land already sold, the court found these were triable issues resolvable only on viva voce evidence. Guided by section 3 of the Environment and Land Court Act (just, expeditious, proportionate and accessible resolution), the court declined the striking-out, directed compliance with Order 11 within 30 days, set the suit down for hearing on the merits, and ordered costs in the cause. The judgment was delivered at Kajiado on 14th June 2018 by Christine Ochieng, Judge.
Key legal issues
#01
Whether the Plaint should be struck out as scandalous, frivolous, vexatious, prejudicial or an abuse of process
Holding
The application was declined because allegations of fraud by both sides raised triable issues requiring viva voce evidence
Reasoning
The court applied Order 2 rule 15 and the Court of Appeal's guidance in Ramji Megji Gudka and DT Dobie that striking out is a drastic remedy to be used sparingly, only in clear cases and without delving into merits. It found mutual allegations of fraud in the plaint and counterclaim, and invoking section 3 of the Environment and Land Court Act (overriding objective) held the suit should proceed to hearing on its merits.
p. 2
Legal principles established
#- The power to strike out pleadings must be exercised sparingly and only in the clearest of cases
- A court striking out a pleading must not embark on the merits of the case
- Even one triable issue is sufficient to defeat a striking-out application
Court orders
#- 1.Declined to allow the application to strike out the Plaint (and the 6th Defendant/Plaintiff in Counterclaim's application dated 5th May 2017 to strike out the Defence in Counterclaim)
- 2.Directed the parties to comply with Order 11 within 30 days from the date of the ruling
- 3.Set the suit down for hearing on its merits
- 4.Costs in the cause
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 5, 6, 7 & 63(e) of the Civil Procedure Act and Order 2 rule 15(1)(b) and (d) of the Civil Procedure Rules; Environment and Land Court Act, Section 3
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Nkatele Nasha v Jackson Kimeu & others [2018] KEELC 2921 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2921/eng@2018-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.