Susan Nyambura Njenga v Own A Plot Ltd & 2 others; Elias Ndwiga Njoka (Interested Party) [2019] KEELC 1738 (KLR)
The bottom line
#The Environment and Land Court in Kajiado refused to dismiss this land dispute, ruling that real questions about ownership and fraud must be decided at a full trial.
What this practically means
#Executive summary
#Key legal issues
#Whether orders of injunction issued on 2nd December 2014 should be set aside
The court declined to set them aside as they preserved the substratum of the suit and no prejudice was shown
The Applicant sought setting aside of the 2nd December 2014 injunction orders. The court noted the orders were granted to preserve the substratum of the suit pending determination. It found no party would suffer prejudice if the orders remained in place, and therefore declined to disturb them, allowing them to subsist pending trial.
Whether the suit should be dismissed under Order 2 Rule 15 as frivolous and an abuse of process
Dismissal refused; pleadings raise triable issues on ownership and alleged fraud that must go to full trial
Applying Order 2 Rule 15(1) and the Ramji Megji Gudka and DT Dobie authorities, the court held striking-out powers must be sparingly exercised in the clearest of cases. The 2nd Defendant's defence explained how it acquired the land after due diligence; the pleadings raise triable issues on how each party acquired the suit lands and on alleged fraudulent subdivisions, which should be determined at trial.
Legal principles established
#- The power to strike out pleadings must be sparingly exercised and only in the clearest of cases
- A court should not determine merits at the striking-out stage; even one triable issue suffices to keep a suit alive
Court orders
#- 1.The orders of injunction issued on 2nd December 2014 are not set aside and shall subsist
- 2.The Interested Party's application dated 2nd April 2019 seeking dismissal of the suit is disallowed
- 3.All parties to comply with Order 11 and set the suit down for hearing
- 4.Costs in the cause
- Jurisdiction invoked
- Order 2 Rule 15(2)(b)(c)(d) and Order 51(1) of the Civil Procedure Rules; Sections 3, 3A, 63(e) and 80 of the Civil Procedure Act; Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Susan Nyambura Njenga v Own A Plot Ltd & 2 others; Elias Ndwiga Njoka (Interested Party) [2019] KEELC 1738 (KLR)", Case Analysis (2019). Notice of Motion dated 2nd April 2019 in ELC suit (arising from Kajiado ELC proceedings concerning Kajiado/Kisaju/121, 1794, 1818, 4610, 4611-4615). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1738/eng@2019-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.