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ELCDismissedNot stated in judgment· [2019] KEELC 4773 (KLR)

Prosper Projects Ltd v County Government of Mombasa & 4 others [2019] KEELC 4773 (KLR)

Environment and Land Court
22 January 2019
CYC. Yano
1,552 words in judgment
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The bottom line

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The Environment and Land Court in Mombasa refused to strike out a landowner's suit against the County Government of Mombasa, ruling disputed facts must go to trial.

What this practically means

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Executive summary

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The 1st defendant, the County Government of Mombasa, brought a Notice of Motion dated 1st March 2018 under Order 2 Rule 15 and Order 51 Rule 1 of the Civil Procedure Rules seeking to strike out the plaintiff's suit against it. It argued that it neither allocated the suit property nor permitted its encroachment, that the land was Government Land allocable only by the National Government, that both the plaintiff and Maji Safi Primary School had been allocated land by the National Government, and that it does not run the school since only pre-primary education is devolved. It maintained it was not a proper party and that the suit against it was an abuse of process. The plaintiff opposed, contending it had sued the applicant reasonably on information then available, that the applicant's new position contradicted its pleaded defence of lawful possession, that a pre-primary block on the land was under the applicant's management, and that the applicant collected rates on the property. The 2nd to 5th defendants opposed through grounds of opposition, noting the applicant's role in the original allocation and that they had filed a notice of claim against it seeking indemnity and damages. The court held that striking-out jurisdiction is exercised sparingly and only in clear and obvious cases, and that determining the contested issues would amount to deciding the case on affidavit evidence, which is permissible only in clear and plain cases. Invoking Article 50(1) of the Constitution, the court dismissed the application with costs to the plaintiff, leaving the suit to proceed to trial.

Key legal issues

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01

Whether striking out is warranted where the application requires resolution of disputed factual issues

Holding

The application was refused because resolving ownership and allocation of the suit property would amount to a mini-trial on affidavit evidence, which is impermissible in a striking-out application

Reasoning

The court applied the settled principles under Order 2 Rule 15: striking out is reserved for clear and obvious cases. The applicant's assertions that it never allocated the suit property, that the land was Government Land allocable only by the National Government, and that it does not run Maji Safi Primary School were all contested factual questions. Moreover, the co-defendants had filed a notice of claim against the applicant seeking indemnity, making it a proper party.

p. 2
02

The constitutional dimension of the right to a fair hearing in deciding whether to terminate a suit

Holding

Article 50(1) guarantees every person the right to have any dispute decided in a fair hearing, a right that cannot be limited under Article 25, militating against summary termination

Reasoning

The court invoked Articles 50(1) and 25 of the Constitution to reinforce that a party should not be deprived of its day in court except in plain and obvious cases. While hearings may take the form of affidavit evidence, that route is appropriate only where the case is clear; this one was not.

p. 2

Legal principles established

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  • The power to strike out a pleading under Order 2 Rule 15 must be exercised sparingly and only in clear and obvious cases
  • A suit should not be determined by affidavit evidence unless it is a clear and plain case

Court orders

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  1. 1.The Notice of Motion dated 1st March 2018 is dismissed with costs to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 1A, 1B and 3A
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 25

Cases cited (1)

  • Yaya Towers Limited –v- Trade Bank Limited (In Liquidation)
    (2000) eKLR
Jurisdiction invoked
Order 2 Rule 15 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Prosper Projects Ltd v County Government of Mombasa & 4 others [2019] KEELC 4773 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4773/eng@2019-01-22

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