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ELCDismissed· [2019] KEELC 1722 (KLR)

Thomas Schiering v Nereah Michael Said & 2 others [2019] KEELC 1722 (KLR)

Environment and Land Court of Kenya
16 September 2019
CYC.K. Yano
1,776 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The 1st Defendant, Nereah Michael Said, moved the Environment and Land Court at Mombasa by Notice of Motion dated 30th April 2018 under Order 2 Rule 15(1)(a), (b) & (d) and Order 51 Rule 1 of the Civil Procedure Rules seeking striking out of the Plaintiff's Plaint and Notice of Motion dated 31st October 2017, contending that the Plaintiff lacked locus standi, was indirectly suing on behalf of the deregistered company Rising Eagle Limited, and that the suit was scandalous and an abuse of process. The 2nd and 3rd Defendants filed a Notice of Preliminary Objection on similar grounds, also asserting that electricity-related disputes fell within the exclusive domain of the Energy Regulatory Commission under the Energy Act No. 12 of 2012. The Plaintiff opposed, averring that the transfer of KWALE/KINONDO/755 to Rising Eagle Limited and onward to the 1st Defendant was procured by misrepresentation, that no consideration was paid, that the 1st Defendant held the property in trust for him, that he had been in sole possession, and that he sued on his own behalf, not for the company. The court noted that the jurisdictional issue had already been resolved in its ruling of 23rd January 2019. Applying the classic principles in DT Dobie & Company (Kenya) Limited v Muchina, Justice C.K. Yano held that the striking-out jurisdiction must be exercised sparingly, only in plain and obvious cases, and without a mini-trial. The Plaint pleaded a trust in favour of the Plaintiff, raising triable issues that required evidence. The application and preliminary objection were accordingly dismissed with costs on 16th September 2019.

Key legal issues

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01

Whether the Plaintiff's suit should be struck out for want of locus standi or as an abuse of process

Holding

The application to strike out was dismissed; the Plaint raises triable issues, notably whether a trust existed between the Plaintiff and the 1st Defendant, and contested facts require evidence at trial

Reasoning

The court reiterated the settled principles governing striking out: the jurisdiction is exercised sparingly and only in plain and obvious cases, without a mini-trial. The Plaintiff pleaded that he transferred the property to the 1st Defendant in trust, which raises a triable issue. The Plaintiff maintains he sues on his own interest, not on behalf of Rising Eagle Limited, and evidence is necessary to establish the contested facts.

p. 2
02

Whether the jurisdiction issue remained live

Holding

The jurisdictional question had already been determined in the ruling dated 23rd January 2019, leaving only the striking-out question for determination

Reasoning

The court noted that the issue of jurisdiction over the electricity-related disputes had been decided in an earlier ruling and therefore confined itself to whether the Plaint should be struck out under Order 2 Rule 15.

p. 2

Legal principles established

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  • The power to strike out a pleading under Order 2 Rule 15 must be exercised sparingly, in clear and obvious cases, and without embarking on a mini-trial of the merits; a suit should only be struck out if it is beyond redemption by amendment
  • If a pleading raises a triable issue, the suit ought to go to trial even if it may ultimately not succeed

Court orders

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  1. 1.The Notice of Motion dated 30th April 2018 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)(a), (b) & (d)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 1A, 1B and 3A
  • Energy ActNo. 12 of 2012 (as invoked by Defendants on jurisdiction)

Cases cited (4)

  • George Musila Mbiti, Reuben Mutuma Ngumi & 72 Others –v- Tropical Farm Management Kenya Ltd & 4 Others
    (2010) eKLR
  • Christopher Michael Lockkley –v- Juletabi African Adventures Limited & 2 Others
    (2013) eKLR
  • Juletabi African Adventures Limited and Another –v- Christopher Michael Lockley
    (2017) eKLR
  • DT Dobie & Company (Kenya) Limited –v- Muchina
    (1982) KLR
Jurisdiction invoked
Environment and Land Court jurisdiction; application under Order 2 Rule 15(1)(a), (b) & (d) and Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 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, "Thomas Schiering v Nereah Michael Said & 2 others [2019] KEELC 1722 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1722/eng@2019-09-16

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