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ELCDismissed· [2018] KEELC 2945 (KLR)

Nyamalo Sirimoi Nkiminis & another v Sirimoi Nkiminis & 13 others [2018] KEELC 2945 (KLR)

Environment and Land Court
18 June 2018
COChristine Ochieng
1,463 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to throw out a family's land dispute, ruling that fraud claims need a full hearing, not a shortcut dismissal.

What this practically means

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Executive summary

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The Defendants filed a Notice of Motion dated 16th August 2017 seeking to strike out the Plaint under Order 2 rule 15(b) and (d) of the Civil Procedure Rules, on the ground that the suit disclosed no cause of action against the 2nd to 13th Defendants and was frivolous, scandalous and vexatious. The 1st Defendant sold land parcel KAJIADO/PURKO/1067, and the 2nd to 4th Defendants, claiming to be bona fide purchasers without notice, subdivided and transferred portions to the 5th to 13th Defendants. The Plaintiffs' case was that the sale proceeded without their involvement and without the mandatory spousal consent, and that the mutations were not signed by the 1st Defendant. The Plaintiffs filed Grounds of Opposition asserting the court's jurisdiction and invoking section 28 of the Land Registration Act and the Matrimonial Property Act. The court, per Christine Ochieng J, framed a single issue: whether the Plaint should be struck out. Relying on Ramji Megji Gudka Ltd v Alfred Morfat Omundi Michira and D T Dobie v Muchina on the sparing exercise of striking-out powers, and on R. G. Patel v. Lalji Makanji on the strict proof of fraud, the court held that the pleaded allegations of fraud, mistake and want of spousal consent were triable issues requiring viva voce evidence. The application was declined, parties were directed to comply with Order 11 within 60 days and set the suit down for hearing, with costs in the cause.

Key legal issues

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01

Whether the Plaint should be struck out under Order 2 rule 15 of the Civil Procedure Rules

Holding

The application was declined because the Plaint discloses triable issues, notably allegations of fraud and lack of spousal consent to the sale of the suit land

Reasoning

The Plaint alleges fraud and mistake at paragraph 32 and non-obtainment of spousal consent. Following R. G. Patel v. Lalji Makanji, allegations of fraud must be strictly proved and can only be determined with viva voce evidence. The Court of Appeal in Ramji Megji Gudka requires striking-out powers to be exercised sparingly and only in the clearest of cases. The existence of even one triable issue suffices to save the pleading.

p. 3

Legal principles established

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  • The power to strike out pleadings must be sparingly exercised and only in the clearest of cases
  • Allegations of fraud must be strictly proved; something more than a mere balance of probabilities is required
  • Even one triable issue is sufficient to defeat an application to strike out

Court orders

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  1. 1.The Defendants' Notice of Motion dated 16th August 2017 to strike out the Plaint is disallowed
  2. 2.Parties to comply with Order 11 within 60 days from the date of the ruling and set the suit down for hearing
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 rule 15(b) & (d)
  • Civil Procedure RulesOrder 11
  • Civil Procedure ActSection 1A
  • Land Registration ActSection 28
  • Land Registration ActSections 25(1) and 26(1)
  • Matrimonial Property ActNot specified

Cases cited (8)

  • Mamucha & Co Advocates Vs City Council of Nairobi
    (2006) eKLR
  • Kashisha Vs Sempagana
    (1967) EA 16
  • Dawkins Vs Prince Edward of Save Weimber
    (1976) 1QBD 499
  • Chaffers Vs Golds Mid
    (1894) 1QBD 186
  • Crescent Construction Co. Ltd Vs Delphis Bank Ltd
    Civil Appeal 146 of 2001 (2007) eKLR
  • D T Dobie & Company (Kenya) Ltd Vs Muchina
    [1982] KLR 1
  • RAMJI MEGJI GUDKA LTD –Vs- ALFRED MORFAT OMUNDI MICHIRA & 2 OTHERS
    [2005] eKLR
  • R. G. Patel v. Lalji Makanji
    [1957] EA 314
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; application under Order 2 rule 15(b) & (d) 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, "Nyamalo Sirimoi Nkiminis & another v Sirimoi Nkiminis & 13 others [2018] KEELC 2945 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2945/eng@2018-06-18

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