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ELCOther· [2018] KEELC 3139 (KLR)

Benson Kamau Macharia & 4 others v Anglican Church of Kenya (Diocese of Mount Kenya Central & 4 others [2018] KEELC 3139 (KLR)

Environment and Land Court
31 May 2018
JKJ.G. Kemei
1,680 words in judgment
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The bottom line

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A Kenyan court refused to fast-track a land dispute by adopting the National Land Commission's decision, holding the parties must first resolve their differences at a full trial.

What this practically means

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Executive summary

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The Plaintiffs, a community of Gituri and Gaitega villages, sued over 25 acres of land (Title No. Loc.11/Gaitega/345) registered in the name of the defunct County Council of Muranga, now the County Government of Muranga, and allegedly reserved for Gituri Secondary School in 1965 but appropriated in the 1980s by the 1st Defendant for private schools. By a Notice of Motion dated 21.9.2017 they sought, among other things, that a determination made by the National Land Commission (3rd Defendant) on 27 January 2017 after public hearings - splitting the land into a primary school portion for the 1st Defendant and a secondary school portion for the community - be adopted as the judgment of the Court, that the County Government be ordered to demarcate accordingly, that the 1st and 5th Defendants' defence and counterclaim be struck out and summary judgment or judgment on admission be entered. The 1st and 5th Defendants opposed, invoking their right to a full trial and contending that the Court could not summarily adopt NLC recommendations, the NLC being a party to the suit. The County Government added that the orders sought against it were only executable by the National Government. Justice J.G. Kemei declined to adopt the NLC determination, noting it was not based on party consensus, the 1st Defendant had never ratified it and had earlier filed (then abandoned) judicial review proceedings, and that the NLC was itself a party. Adoption would amount to a mandatory injunction or summary disposal for which no compelling circumstances existed. Applying DT Dobie and Yaya Towers, the court held the defence raised triable issues and that the striking-out application was fatally defective for relying on affidavit evidence contrary to Order 2 rule 15(2). No explicit admissions were found. The application succeeded only in respect of the consent injunction already in force, with costs in the cause, and parties were encouraged to pursue ADR and pretrial conference.

Key legal issues

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01

Whether the NLC determination could be adopted as the Court's judgment

Holding

Refused; the determination was not arrived at by consensus, the 1st Defendant never ratified it and had earlier moved to court in judicial review to stop the process, and the 3rd Defendant is a party to the suit.

Reasoning

The court examined the determination and found paragraph 26 recorded a settlement split recommended by advocates but never ratified by the 1st Defendant, who instead filed judicial review proceedings. The NLC then abandoned the settlement under paragraph 28. Absent unequivocal consent, adoption would amount to summary disposal/mandatory injunction requiring compelling or special circumstances, which were not shown. Contentious issues belong to the trial court.

p. 2
02

Whether the 1st and 5th Defendants' defence and counterclaim disclose triable issues

Holding

They do; the defence raises purchase/exchange of a portion and 1960s allocation, and the 2nd Defendant raises implementability, all matters for trial.

Reasoning

Applying DT Dobie, the court held that a suit showing a mere semblance of a cause of action should go to trial. The plaintiffs' trust claim, the defendants' purchase/exchange and allocation claims, and the County Government's contention that orders would be in vain against it are all contentious issues properly reserved for trial. The court is not concerned with whether they will succeed, only that they are triable.

p. 3
03

Whether evidence by affidavit was admissible in support of a striking-out application under Order 2 rule 15

Holding

No; the affidavit of Benson Kamau Macharia was fatal to that limb of the application.

Reasoning

Order 2 rule 15(2) dictates that no evidence shall be admissible on an application under subrule 1(a); the application must state its grounds concisely. Reliance on a supporting affidavit therefore rendered the striking-out application fatally defective, consistent with the principle that the power to strike out is exercised only in very clear and plain cases (Yaya Towers).

p. 3
04

Whether there were admissions justifying judgment on admission

Holding

None; no explicit admissions found in the pleadings, and the prayer for summary judgment was not available.

Reasoning

The court reviewed the pleadings and responses and found no explicit admissions. Although the 2nd Defendant's letters of 6.2.2017 and 22.8.2017 showed steps towards implementing the NLC determination, including a stakeholder dissemination meeting which 'became a cropper', this did not amount to an admission warranting judgment.

p. 3

Legal principles established

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  • A quasi-judicial determination made without consensus of the parties cannot be adopted as a judgment of the Court, especially where the authoring body is itself a party to the proceedings
  • The power to strike out pleadings should be exercised sparingly and cautiously, only in plain and obvious cases
  • On an application under Order 2 rule 15(1)(a), no evidence is admissible; the application must state concisely the grounds on which it is made

Court orders

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  1. 1.The application succeeds in terms of prayer 2 only, being the interlocutory injunction already granted by consent on 27.11.2017 and still in force
  2. 2.Costs shall be in the cause
  3. 3.Parties at liberty to pursue alternative dispute resolution and to list the matter for pretrial conference at the earliest

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 rule 15
  • Civil Procedure RulesOrder 15 rule 1
  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure Actsection 3A
  • Constitution of KenyaArticle 165(1)(d)

Cases cited (3)

  • Nation Media Group & 2 others Vs John Harun Mwau
    (2014) EKLR
  • D T Dobie & Company (Kenya) Limited Vs Joseph Mbaria Muchina & Another
    (1980) EKLR
  • Yaya Towers Limited Vs Trade Bank Limited (in liquidation)
    (2000) EKLR
Jurisdiction invoked
Articles 159 and 165(1)(d) of the Constitution; Order 2 rule 15, Order 15 rule 1 and Order 51 rule 1 of the Civil Procedure Rules; section 3A of the Civil Procedure Act

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, "Benson Kamau Macharia & 4 others v Anglican Church of Kenya (Diocese of Mount Kenya Central & 4 others [2018] KEELC 3139 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3139/eng@2018-05-31

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