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ELCAllowedNot stated in judgment· [2019] KEELC 3939 (KLR)

Kipkebut Chebet (Legal Representative of Kabon Chepsergon) & another v Salina Kipsoto (Administrator and representative of Charles Kiptorus Ngabo) & 2 others [2019] KEELC 3939 (KLR)

Environment and Land Court
26 March 2019
1,062 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by M.A. Odeny J of the Environment and Land Court at Eldoret, delivered on 26 March 2019, determined a Notice of Motion dated 19 November 2018 by the 2nd and 3rd defendants seeking the striking out of their names from an Originating Summons. The Originating Summons was a claim for adverse possession in which the plaintiffs sought a declaration of quiet, open, exclusive and uninterrupted occupation of the suit land for over 12 years. The applicants submitted that they were wrongfully sued as they were not the registered proprietors of the suit property, that no adverse possession claim or relief was pleaded against them, and that any orders granted could not be enforced against them, rendering the suit against them frivolous, vexatious and an abuse of process. The plaintiffs opposed, contending that the identity and role of the defendants, as members of the Kapchumuso Land Committee during land adjudication, could only emerge at trial. The court framed the issue as whether the suit against the 2nd and 3rd defendants was an abuse of process or would prejudice, embarrass or delay a fair trial. Relying on Order 2 rule 15 of the Civil Procedure Rules, the court held that the orders sought in an adverse possession claim bind only the registered owner, the 1st defendant, and that fraud allegations against the committee members could not be canvassed within an adverse possession claim; the plaintiffs' remedy was to summon them as witnesses. Allowing the application with costs, the court struck out the 2nd and 3rd defendants' names from the Originating Summons.

Key legal issues

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01

Whether the 2nd and 3rd defendants were wrongfully joined in an adverse possession suit

Holding

Yes; they are not registered proprietors of the suit property and no enforceable relief could issue against them in an adverse possession claim.

Reasoning

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.

p. 2
02

The court's approach to striking out pleadings

Holding

Courts should be slow to strike out pleadings, but should not hesitate where the abuse of court process is glaring.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The 2nd and 3rd defendants' application dated 19th November 2018 is allowed with costs
  2. 2.The 2nd and 3rd defendants' names are struck out of the Originating Summons with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 rule 15
Jurisdiction invoked
Order 2 rule 15 of the Civil Procedure Rules (striking out of pleadings)

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, "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.