Kipkebut Chebet (Legal Representative of Kabon Chepsergon) & another v Salina Kipsoto (Administrator and representative of Charles Kiptorus Ngabo) & 2 others [2019] KEELC 3939 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd and 3rd defendants were wrongfully joined in an adverse possession suit
Yes; they are not registered proprietors of the suit property and no enforceable relief could issue against them in an adverse possession claim.
The Originating Summons sought a declaration of adverse possession against the registered owner, the 1st defendant. The 2nd and 3rd defendants were sued merely as members of the Kapchumuso Land Committee; the pleadings contained no adverse possession claim against them apart from allegations of fraud. Since orders in an adverse possession claim cannot be enforced against persons without proprietary interest, joining them served no legal purpose and amounted to an abuse of process.
The court's approach to striking out pleadings
Courts should be slow to strike out pleadings, but should not hesitate where the abuse of court process is glaring.
The court invoked Order 2 rule 15 of the Civil Procedure Rules, which permits striking out pleadings that disclose no reasonable cause of action, are frivolous or vexatious, or amount to an abuse of process. Balancing the reluctance to drive parties out of the seat of justice against the clear absence of any claim enforceable against the 2nd and 3rd defendants, the court found the abuse glaring and exercised its discretion to strike out their names.
Legal principles established
#- In a claim for adverse possession, orders can only be enforced against a party with a proprietary interest in the suit land; parties without such interest should not be sued.
- Fraud allegations against parties with no proprietary interest cannot be canvassed within an adverse possession claim; such parties should be summoned as witnesses instead.
Court orders
#- 1.The 2nd and 3rd defendants' application dated 19th November 2018 is allowed with costs
- 2.The 2nd and 3rd defendants' names are struck out of the Originating Summons with costs
- Jurisdiction invoked
- Order 2 rule 15 of the Civil Procedure Rules (striking out of pleadings)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipkebut Chebet (Legal Representative of Kabon Chepsergon) & another v Salina Kipsoto (Administrator and representative of Charles Kiptorus Ngabo) & 2 others [2019] KEELC 3939 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3939/eng@2019-03-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.