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ELCDismissedKericho ELCC (E&L) — Notice of Motion dated 29.1.2019 (suit number not stated in judgment)· [2019] KEELC 3174 (KLR)

Hellen Chelangat Ruto v Philip Ngeno & another [2019] KEELC 3174 (KLR)

Environment and Land Court
16 April 2019
1,414 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kericho Environment and Land Court refused to strike out a sister's land occupation claim, ruling genuine disputes deserve a full hearing.

What this practically means

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Executive summary

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The Defendants filed a Notice of Motion dated 29 January 2019 under Order 2 Rule 15(1)(a),(b) and (d) of the Civil Procedure Rules seeking dismissal of the Plaintiff's suit as frivolous, scandalous and an abuse of the court process, together with directions and costs. The dispute concerns land parcel Kericho/Kipkelion/Barsiele/220 measuring about 7 acres, registered in the name of Rorogu Cheruiyot Ngeno, who is not a party. The Plaintiff, the registered owner's sister, depones that she was allowed onto the property in 1986 to occupy and care for it and seeks a permanent injunction against eviction by the Defendants. The Defendants contend that, not being the registered owner, the Plaintiff is a mere licensee and trespasser who cannot sue, and that failing to demonstrate ownership renders her suit a waste of the court's time. The court examined the meanings of scandalous, frivolous, vexatious and abusive pleadings, and applying the cautionary principles in D.T. Dobie & Company (Kenya) Ltd v Joseph Mbaria Muchina and Richard Chapi Leiyagu v IEBC, held that nothing in the Plaintiff's claim is scandalous or frivolous. It observed that if she occupies with the registered owner's permission, only Rorogu may lawfully terminate her stay, and suggested that joining him would help resolve the dispute. The court dismissed the application with costs in the cause, preserving the suit for determination on the merits.

Key legal issues

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01

Whether the Plaintiff's suit is scandalous, frivolous and an abuse of court process warranting striking out under Order 2 Rule 15(1)

Holding

The application was dismissed; the Plaintiff's claim, based on occupation of the suit property with the registered owner's permission since 1986, discloses a genuine dispute fit for trial on the merits.

Reasoning

Applying the definitions of scandalous, frivolous and vexatious pleadings, the court found the Plaintiff's claim neither disgraceful nor groundless. The court invoked the caution in D.T. Dobie that courts should sustain rather than terminate suits, and the Court of Appeal's insistence on the right to a hearing and proportionality. It noted the registered owner Rorogu Cheruiyot Ngeno should ideally be enjoined to shed light on the dispute.

p. 2

Legal principles established

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  • A suit should not be summarily dismissed unless it plainly and obviously discloses no reasonable cause of action and is beyond redemption by amendment.
  • The right to a hearing is a well-protected constitutional right and dismissal of suits must protect the integrity of the court process with proportionality.

Court orders

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  1. 1.The Defendants' Notice of Motion dated 29.1.2019 is dismissed
  2. 2.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)(a),(b) and (d)
  • Land Registration Actsection 25

Cases cited (3)

  • Trust Bank Ltd Vs Hemanshusirkat Amin & Co Ltd & Another
    Nrb HCCC No. 984 of 1999
  • D. T Dobie & Company (Kenya Ltd Vs Joseph Mbaria Muchina
    1982 KLR 1
  • Richard Chapi Leiyagu V IEBC & 2 Others
Jurisdiction invoked
Order 2 Rule 15(1)(a),(b) and (d) of the Civil Procedure Rules

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, "Hellen Chelangat Ruto v Philip Ngeno & another [2019] KEELC 3174 (KLR)", Case Analysis (2019). Kericho ELCC (E&L) — Notice of Motion dated 29.1.2019 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3174/eng@2019-04-16

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