Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutCivil Suit No 287 of 2016· [2018] KEELC 4492 (KLR)

Katana Fondo Birya v Krystalline Salt Ltd & 2 others [2018] KEELC 4492 (KLR)

Environment and Land Court
22 February 2018
JOJ.O. Olola
2,068 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Plaintiff, Katana Fondo Birya, sued Krystalline Salt Ltd, the Chief Land Registrar and the Attorney General, seeking declarations that he was the lawful owner of 34 hectares known as Giriama Village Island at Marereni, Kilifi County, and that this land had been fraudulently included in the 1st Defendant's parcel LR No. 13427, which grew from an allotted 2000 hectares to a registered 2034 hectares. He sought revocation of the inclusion, re-survey, and issuance of a separate title, plus costs. The 1st Defendant applied under Order 2 Rule 15 of the Civil Procedure Rules to strike out the Plaint as disclosing no reasonable cause of action and as frivolous, vexatious and abusive. The Plaintiff responded only with grounds of opposition. The court, applying DT Dobie & Co Kenya Ltd v Muchina, held that striking out is a drastic remedy reserved for complete shams. On the material, the Plaintiff did not controvert the 1st Defendant's evidence: the land was allotted in 1984 to General Jackson Mulinge as approximately 2000 hectares, surveyed at 2034 hectares, and titled in 1985. The Plaintiff's own 1998 application for 16 hectares was cancelled because the land was already comprised in the 1st Defendant's title. His claim of a distinct island was unsupported and unconvincing, and no wrongdoing was pleaded against the 2nd and 3rd Defendants. The court found the Plaint frivolous, vexatious and an abuse of process, struck it out entirely, and awarded costs to the 1st Defendant.

Key legal issues

#
01

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

Holding

Yes - the Plaint disclosed no reasonable cause of action, was frivolous and vexatious, and amounted to an abuse of the court process.

Reasoning

The court examined the pleadings and the 1st Defendant's uncontroverted evidence: a 1984 allotment of approximately 2000 hectares to General Jackson Mulinge, survey to 2034 hectares, and title issued in 1985. The Plaintiff's own 1998 application was for 16 hectares, later cancelled because the land was already comprised in the 1st Defendant's title. The claim of a distinct 34-hectare island was unsupported.

p. 3
02

Whether the suit could subsist against the 2nd and 3rd Defendants

Holding

No wrongdoing was attributed to the Chief Land Registrar and the Attorney General, and the suit could not subsist without the claim against the 1st Defendant.

Reasoning

The court noted the 2nd and 3rd Defendants were only mentioned in the descriptive paragraphs of the Plaint, with no acts of wrongdoing pleaded against them, so the suit as framed collapsed once the claim against the 1st Defendant was found abusive.

p. 3

Legal principles established

#
  • Striking out pleadings is a drastic remedy to be exercised only where a pleading is a complete sham and without expressing opinion on the merits
  • Grounds of opposition that are general averments of law do not rebut sworn factual assertions, which must be taken as true

Court orders

#
  1. 1.The Plaint dated 26th October 2016 and filed on 27th October 2016 is struck out with costs to the 1st Defendant

Authorities

#

Legislation

  • Civil Procedure RulesOrder 2 Rule 15

Cases cited (3)

  • DT. Dobie & Company Kenya Ltd vs Muchina
    (1982) KLR 1
  • Kennedy Otieno Odiyo & 12 Others vs Kenya Electricity Generating Company Ltd
    (2010) eKLR
  • Dawkins vs Prince Edward of Save Weimber
    (1976) I QBD 499
Jurisdiction invoked
Original civil jurisdiction over land disputes; application under Order 2 Rule 15 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Katana Fondo Birya v Krystalline Salt Ltd & 2 others [2018] KEELC 4492 (KLR)", Case Analysis (2018). Civil Suit No 287 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4492/eng@2018-02-22

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