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ELCPartially AllowedELC 1265 of 2013 (OS)· [2019] KEELC 5047 (KLR)

Frednard Muaia Sila v Al-Haiee Investments Limited & 9 others [2019] KEELC 5047 (KLR)

Environment and Land Court
4 April 2019
1,823 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out four defendants from an adverse possession case but refused to make the plaintiff pay Kshs 2.5 million as security for costs.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (Obaga J, 4 April 2019) dealt with three applications in an adverse possession suit over L.R No. 209/12071/1 IR 61996, registered in the name of the 1st Defendant. The 5th Defendant sought striking out of the suit against it for want of cause of action, and the 2nd, 3rd and 4th Defendants (directors) sought striking out for want of reasonable cause, contending that the Plaintiff, having sued the registered owner, could not also sue its directors. The Plaintiff opposed, arguing the claims rested on fraud by the directors and that the applications were defective for lack of supporting affidavits. The Court held that in a claim founded on adverse possession, the only relevant enquiry is whether the property is registered in the named defendant's title and whether the Plaintiff has been in adverse possession for the statutory period; the directors and the 5th Defendant company were unnecessary parties. It also held that no supporting affidavit is required under Order 2 Rule 15(1)(a). The suit against the 2nd, 3rd, 4th and 5th Defendants was struck out with costs. The third application sought security for costs of Kshs.2,500,000/= from the Plaintiff, premised on unpaid costs in ELC 1264 of 2013 (OS). Applying the Keary Developments principles cited in Moses Wachira v Niels Bruel, and the access-to-justice reasoning in Patrick Ngata Kimanzi, the Court found the order might drive the Plaintiff from the seat of justice and disallowed the application with costs to the Plaintiff.

Key legal issues

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01

Whether the suit against the 2nd, 3rd, 4th and 5th Defendants discloses a reasonable cause of action

Holding

The suit against them does not stand and is struck out; the proper defendant in an adverse possession claim is the registered owner alone

Reasoning

The Plaintiff's claim is adverse possession against the registered owner, the 1st Defendant. The 2nd, 3rd and 4th Defendants are directors of the 5th Defendant company, and the 5th Defendant took a loan over the property charged on the suit property. Given the nature of the claim, these parties are unnecessary; striking them out does not drive the Plaintiff from the seat of justice since his recourse lies against the 1st Defendant.

p. 2
02

Whether the Plaintiff should furnish security for costs of Kshs.2,500,000/=

Holding

The application for security for costs was disallowed

Reasoning

The Court considered the Keary Developments principles as laid down in Moses Wachira v Niels Bruel, and the proportionality between access to justice and the defendant's right to security as stated in Patrick Ngata Kimanzi. Weighing all circumstances, including the risk that an order would stifle the claim, the Court found security inappropriate and disallowed the application with costs to the Plaintiff.

p. 3
03

Whether the striking-out applications were defective for lack of supporting affidavits

Holding

The objection failed; no evidence is required in an application under Order 2 Rule 15(1)(a)

Reasoning

The Plaintiff argued the applications lacked supporting affidavits. The Court held that under Order 2 Rule 15(1)(a) the Applicant need only state concisely the grounds for the application, and the Applicants had shown those grounds, so the applications were properly before the Court.

p. 2

Legal principles established

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  • In an application under Order 2 Rule 15(1)(a) no evidence is required; the Applicant need only state concisely the grounds of the application.
  • In an adverse possession claim, the Plaintiff need only establish that the property is registered in the named defendant's title and that he has been in adverse possession for the statutory period; directors and shareholders of the registered owner need not be sued.
  • Security for costs is a matter of judicial discretion which may be refused where the order risks driving the plaintiff from the seat of justice.

Court orders

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  1. 1.The suit against the 2nd, 3rd, 4th and 5th Defendants is struck out with costs to those Defendants
  2. 2.The application for security for costs against the Plaintiff is disallowed with costs to the Respondent/Plaintiff
Jurisdiction invoked
Order 2 Rule 15(1)(a) of the Civil Procedure Rules (striking out pleadings) and security for costs jurisdiction of the Environment and Land Court

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, "Frednard Muaia Sila v Al-Haiee Investments Limited & 9 others [2019] KEELC 5047 (KLR)", Case Analysis (2019). ELC 1265 of 2013 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5047/eng@2019-04-04

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