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ELCDismissedNot stated in the judgment as provided· [2019] KEELC 1911 (KLR)

DOPP Investments Limited v Kenya Railways Corporation & another [2019] KEELC 1911 (KLR)

Environment and Land Court
31 July 2019
1,966 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Mombasa court refused to end Kenya Railways' Kshs.667 million compensation dispute without a full trial, ruling that contested facts must be tested by evidence.

What this practically means

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Executive summary

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The Plaintiff moved the court by Notice of Motion dated 22nd May 2019, brought under Order 2 Rule 15(1)(a),(b),(c),(d) and Order 51 Rule 1 of the Civil Procedure Rules, seeking to strike out the 1st Defendant's statement of defence and to have judgment entered in terms of prayers 3 and 4 of the Plaint (prayer 3 of the motion having been abandoned). The claim arose from the compulsory acquisition of Plot No. MN/VI/1040/2, following which the 2nd Defendant, after an inquiry, awarded the Plaintiff Kshs.667,903,887/- by an award dated 11th October 2017, which the Plaintiff accepted, with payment advised but not made. The 1st Defendant opposed, contending that its defence raised triable issues, chiefly whether litigation challenging the Plaintiff's ownership of the suit property remained pending, and that striking out would be draconian given the sums involved. The 2nd Defendant supported the application. The court, guided by D.T. Dobie & Company (Kenya) Ltd -v- Muchina as outlined in Delphis Bank Limited -v- Caneland Limited, held that the power to strike out must be exercised sparingly, cautiously and only in plain and obvious cases without a mini-trial. It found that the defence raised triable issues, particularly whether the cases contesting the Plaintiff's title were still pending, a contested fact requiring evidence. The Notice of Motion was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the 1st Defendant's statement of defence should be struck out under Order 2 Rule 15

Holding

The application was dismissed because the defence raises triable issues requiring evidence at trial.

Reasoning

The court reiterated that striking out is a draconian jurisdiction exercised sparingly and only in plain and obvious cases. The 1st Defendant pleaded that the Plaintiff's title was exposed to a string of pending cases, which the Plaintiff disputed as having been dismissed. The court held that contested facts of that nature require evidence, and determination by affidavit evidence is appropriate only in clear and plain cases, which this was not. Accordingly, the justice of the case favoured a trial on the merits.

p. 3
02

Whether summary determination by affidavit evidence was appropriate

Holding

It was not, as such a course is reserved for clear and plain cases.

Reasoning

The court accepted that a hearing need not involve oral evidence and may proceed by affidavit evidence in appropriate cases. However, because the defence raised contested factual questions about the status of litigation affecting the Plaintiff's title to the acquired property, and given the huge sums in contestation, the case could not be termed clear and plain, and the Plaintiff could not be deprived of a proper trial.

p. 3

Legal principles established

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  • The power to strike out a pleading must be exercised sparingly and cautiously, in clear and obvious cases, without embarking on a mini-trial of the merits
  • If a pleading raises a triable issue, even one that may ultimately fail, the matter ought to go to trial

Court orders

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  1. 1.The Notice of Motion dated 22nd May 2019 is dismissed
  2. 2.Each party to bear their own costs
Jurisdiction invoked
Order 2 Rule 15(1)(a),(b),(c),(d), Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B, 3 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, "DOPP Investments Limited v Kenya Railways Corporation & another [2019] KEELC 1911 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1911/eng@2019-07-31

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