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ELCPartially AllowedELC Civil Appeal No. 16 of 2018· [2020] KEELC 528 (KLR)

Fatuma Ahmed Mohammed & another v Charles Mwangi Gitundu [2020] KEELC 528 (KLR)

Environment and Land Court
25 November 2020
COChristine Ochieng
2,324 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court reinstated a landowners' defence that a magistrate had struck out, ruling that claims of long occupation must be heard at trial, not dismissed on paper.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Kajiado against a ruling of Hon. M. Kasera, Chief Magistrate, delivered on 30th August 2018 in Kajiado CMCC No. 154 of 2014, by which the appellants' defence was struck out and judgment entered for the respondent, who had sought eviction from and a permanent injunction over twelve plots on parcel KJD/Ole Kasasi originally forming part of KAJIADO/OLE KASASI/549. The appellants raised four grounds: failure to consider the defence and the jurisdictional issue, lack of pecuniary jurisdiction, denial of a fair hearing, and granting eviction orders without proof of the respondent's acquisition of title. They argued they had occupied the land since 1988 and claimed adverse possession; the respondent countered that the prior suit (HCCC No. 88 of 2009) had been dismissed so sub judice did not arise, that pecuniary jurisdiction was not pleaded, and that the defence was untenable. The court framed three issues and held the magistrate erred: the defence raised bona fide triable issues - the appellants denied trespass and tenancy, pleaded two decades of residence and sub judice, and the respondent never challenged their presence on the land - which ought to have been interrogated at trial, their striking out denying the appellants a fair hearing under Article 50(1). The court set aside the ruling, reinstated the defence for hearing on its merits, and awarded the appellants the costs of the appeal. Compensation, reinstatement and leave to sue the Estate of Ashmael Ole Pasha were refused, and no order was made on adverse possession as it was not expressly pleaded.

Key legal issues

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01

Whether striking out the defence and entering judgment was justified

Holding

The magistrate erred; the defence raised bona fide triable issues that required determination at trial.

Reasoning

The defence denied trespass and tenancy, pleaded residence on the land for two decades, pleaded sub judice and lack of jurisdiction, and the respondent never challenged the appellants' existence on the land. Such matters were triable issues warranting trial. Striking out the defence without considering them denied the appellants a fair trial under Article 50(1) of the Constitution. Striking out is to be exercised sparingly and only in the clearest of cases.

p. 3
02

Adverse possession claim raised on appeal

Holding

Declined to determine it because it was not expressly pleaded in the defence.

Reasoning

Although the appellants heavily relied on adverse possession in their submissions, the court held it was not expressly raised in their defence and made no order in that regard.

p. 3

Legal principles established

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  • A bona fide triable issue is any matter raised by the defendant that warrants further interrogation by the court at a full trial, whether or not it would succeed.
  • The power to strike out pleadings must be sparingly exercised and only in the clearest of cases.
  • If a defence raises even one bona fide triable issue, the defendant must be given leave to defend.

Court orders

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  1. 1.The Ruling delivered on 30th August, 2018 be and is hereby set aside
  2. 2.The Appellants' Defense in the Kajiado CMCC No. 154 of 2014 be and is hereby reinstated and the parties directed to have the matter heard and determined on its merits
  3. 3.The Costs of this Appeal are awarded to the Appellants

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Civil Procedure ActSection 78

Cases cited (11)

  • Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd
    (1989)
  • Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel
    (2016) eKLR
  • Macfoy v United Africa Co. Ltd
    (1961) 3 ALL ER 1169
  • Karuntimi Raiji v M'makinya
    (2013) eKLR
  • Samuel Nyakenogo v Samuel Orucho Onyaru
    (2010) eKLR
  • Jacob Mwanto Wangora v Mary Waruga Wokabi & 3 others
    (2018) eKLR
  • Suleiman Sheikh Shabal v IEBC
    (2014) eKLR
  • Job Kiloch v Nation Media Group Ltd, Salaba Agencies Ltd & Michael Riorio
    [2015] eKLR
  • Ramji Megji Gudka Ltd v Alfred Morfat Omundi Michira & 2 Others
    [2005] eKLR
  • DT Dobie & Company (Kenya) Ltd v Muchina
    [1982] KLR 1
  • Moi University v Vishva Builders Limited
    Civil Appeal No. 296 of 2004 (unreported)
On appeal from
Chief Magistrate's Court at Kajiado
CMCC No. 154 of 2014
Jurisdiction invoked
First appeal to the Environment and Land Court against the ruling of the Chief Magistrate's Court at Kajiado (ELC Civil Appeal No. 16 of 2018)

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, "Fatuma Ahmed Mohammed & another v Charles Mwangi Gitundu [2020] KEELC 528 (KLR)", Case Analysis (2020). ELC Civil Appeal No. 16 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/528/eng@2020-11-25

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