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ELCDismissedNot stated in the excerpt (Eldoret ELC suit concerning Kipsinende/Kipsinende Block 3 (Mosop “A”/61))· [2020] KEELC 1102 (KLR)

Serve in Love Trust Africa v Abraham Kiptarus Kiptoo & 2 others; Ambrose Kiprop & 2 others (3rd Parties/Respondents) [2020] KEELC 1102 (KLR)

Environment and Land Court
22 September 2020
MOM. A. ODENY
1,066 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court refused to kill a land suit, ruling that striking out cases is too harsh when an appeal could change everything.

What this practically means

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Executive summary

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The defendants/applicants applied on 13th December 2019 under Order 2 Rule 51 of the Civil Procedure Rules for the plaintiff's suit concerning land known as Kipsinende/Kipsinende Block 3 (Mosop “A”/61) to be struck out with costs, on the grounds that it disclosed no reasonable cause of action and was frivolous and an abuse of court process. They argued that the suit had been filed by Ambrose Kiprop, David Chemworem, Moses Kipng’etuny Kipkulei and Eric Teimuge purporting to be trustees of SILA trust, whose trusteeship had been declared illegal and the defendants restored as trustees by a High Court judgment dated 22nd October 2019 in Eldoret Court Petition No. 18 of 2016, removing the filers' capacity. The plaintiff/respondent countered that the defendants were not trustees when the land was sold, that the matter in issue was their trusteeship as at 1st January 2017, and that the Petition No. 18 of 2016 decision was itself under appeal in Court of Appeal Case No. 47 of 2020, with judgment pending; the court was urged to stay proceedings rather than strike out the suit. Odeny J framed two issues: whether the case should be struck out and whether it was an abuse of process. Holding that striking out is a draconian measure to be used sparingly, and that a successful appeal would revive the cause of action and the ousted trustees' capacity, the court found no prejudice in awaiting the appellate ruling. The application was dismissed with costs and proceedings stayed for 30 days.

Key legal issues

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01

Whether the suit should be struck out as disclosing no reasonable cause of action and as an abuse of court process given that the trustees who filed it were ousted by the High Court

Holding

The application was dismissed; the pendency of an appeal against the trusteeship decision meant the cause of action could be revived, and striking out would be premature.

Reasoning

The court noted that the trustees who filed the suit were declared illegal by a judgment dated 22nd October 2019 in Eldoret Court Petition No. 18 of 2016, but that judgment is under appeal in Court of Appeal Case No. 47 of 2020. If the appeal succeeds, the ousted trustees' capacity to institute the suit would be reinstated, reviving the cause of action. Since striking out is draconian and there would be no prejudice in waiting, the application failed.

p. 2
02

The standard applicable to striking out pleadings

Holding

Striking out is a draconian measure to be used sparingly, reserved for hopeless matters and abuses of process.

Reasoning

Relying on John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] eKLR, the court held that Articles 50 and 159 of the Constitution require courts to serve substantive justice and to dismiss suits sparingly, weighing the prejudice to both sides. The draconian remedy should draw blood only where absolutely necessary.

p. 2

Legal principles established

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  • Striking out of suits is a draconian measure which should be used sparingly in the interest of justice.
  • Where an appeal capable of reviving the losing party's capacity is pending, the court may stay rather than strike out the suit.

Court orders

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  1. 1.The defendant's application dated 13th December 2019 seeking to strike out the plaintiff's suit is dismissed with costs
  2. 2.A stay of these proceedings for 30 days

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 51
  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 50

Cases cited (1)

  • John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation)
    [2015] eKLR
Jurisdiction invoked
Order 2 Rule 51 of the Civil Procedure Rules (strike-out jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Serve in Love Trust Africa v Abraham Kiptarus Kiptoo & 2 others; Ambrose Kiprop & 2 others (3rd Parties/Respondents) [2020] KEELC 1102 (KLR)", Case Analysis (2020). Not stated in the excerpt (Eldoret ELC suit concerning Kipsinende/Kipsinende Block 3 (Mosop “A”/61)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1102/eng@2020-09-22

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