DOPP Investments Limited v Kenya Railways Corporation & another [2019] KEELC 1911 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 1st Defendant's statement of defence should be struck out under Order 2 Rule 15
The application was dismissed because the defence raises triable issues requiring evidence at trial.
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.
Whether summary determination by affidavit evidence was appropriate
It was not, as such a course is reserved for clear and plain cases.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 22nd May 2019 is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.