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ELCDismissedRuling on Notice of Motion dated 1st November 2016 (suit filed 18th March 2015)· [2019] KEELC 2441 (KLR)
John Muriithi Titus & 27 others v Minister for Lands Kirinyaga County & another [2019] KEELC 2441 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This is a ruling of the Environment and Land Court at Kerugoya (E.C. Cherono, ELC Judge) on the plaintiffs' notice of motion dated 1st November 2016 seeking to strike out the defendants' defence dated 28th July 2015 and to have judgment entered accordingly. The plaintiffs, whose plaint sought the lifting and removal of cautions and restrictions registered against their parcels of land at Kutus in Nyangati area, argued that the defendants had failed to comply with Order II of the Civil Procedure Act, had shown no interest in the matter despite service, and that the interlocutory judgment window had lapsed. The defendants, public bodies that had assumed the functions of the defunct Municipal Councils upon devolution to County Government, countered that they had filed a defence and a list of issues, that their advocates had attended court, and that administrative transition difficulties had hampered their collection of documents; they maintained that failure to comply with Order II is not a ground for striking out a pleading under Order 2 Rule 15 CPR. The court applied Order 2 Rule 15 CPR and the Court of Appeal authorities on striking out pleadings and summary judgment, including D.T. Dobie & Co. Ltd v Muchina and Delphis Bank Ltd v Caneland Ltd, holding that the power to strike out must be exercised sparingly. The court found the defence raised triable issues - that any cautions were justifiably registered following compulsory acquisition for public purposes with compensation paid - which required evidence at trial. The application was dismissed with costs to abide the event.
Key legal issues
#01
Whether the defendants' defence should be struck out for failure to comply with Order II C.P.A.
Holding
The application was dismissed; the defence raises triable issues that must be determined at trial.
Reasoning
The court set out Order 2 Rule 15 CPR grounds for striking out pleadings and the authorities requiring sparing exercise of that power. The defendants, as successor public bodies to the defunct Municipal Councils, averred that any cautions/restrictions on the plaintiffs' land were justifiably registered following compulsory acquisition for public purposes with compensation paid. These averments raised triable issues requiring oral evidence, making summary dismissal unjust.
p. 2
Legal principles established
#- A defence which raises triable issues must go to trial, even if it may not succeed
- The power to strike out pleadings should be exercised sparingly and cautiously, without embarking on the merits
- A court may only strike out pleadings that disclose no semblance of a cause of action or defence and are incurable by amendment
Court orders
#- 1.The application dated 1st November 2016 is dismissed
- 2.The costs shall abide the event
- Jurisdiction invoked
- Order 2 Rule 15 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Muriithi Titus & 27 others v Minister for Lands Kirinyaga County & another [2019] KEELC 2441 (KLR)", Case Analysis (2019). Ruling on Notice of Motion dated 1st November 2016 (suit filed 18th March 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2441/eng@2019-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.