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ELCPartially AllowedNot stated in the judgment· [2020] KEELC 1853 (KLR)

Karisa Kahindi Karisa & Family And 6 others v Mwalimu Hamisi Mwahadzi & 2 others [2020] KEELC 1853 (KLR)

Environment and Land Court
25 June 2020
1,570 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land eviction suit survived a strike-out attempt and will proceed to trial, but it was struck out against two defendants wrongly joined.

What this practically means

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Executive summary

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The three Defendants moved the court by Notice of Motion dated 7th May 2019 under Order 2 Rule 15(1) of the Civil Procedure Rules seeking striking out or dismissal of the Plaintiffs' suit on grounds that it disclosed no cause of action, was scandalous, frivolous, vexatious and an abuse of process, that the Plaintiffs lacked capacity to sue in a representative capacity, and that the suit should have been brought by Originating Summons under Order 37 Rule 7. The Plaintiffs opposed, asserting the land belonged to their forefathers and that their adverse possession claim was properly pleaded. The court, applying D.T. Dobie & Co. Ltd v Muchina and Trust Bank Ltd v Amin Company Ltd, held that triable issues existed: the Plaint, though drafted in person and lacking precision, was not entirely without substance or groundless and thus not frivolous or scandalous. The lack of authority of the 1st Plaintiff to represent the other Plaintiffs was noted but held not to be a ground for striking out. However, the court agreed no claim whatsoever was made against the 2nd and 3rd Defendants, Popo Abdallah and Swak Mbwana. The application partially succeeded: the suit was struck out with costs against the 2nd and 3rd Defendants only, and the suit proceeds to trial as against the 1st Plaintiff and the 1st Defendant. Dated and delivered at Malindi on 25th June 2020 by J.O. Olola, Judge.

Key legal issues

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01

Whether the Plaint disclosed a reasonable cause of action

Holding

The Plaint was not entirely without substance; triable issues existed as against the 1st Defendant

Reasoning

The court applied the D.T. Dobie principle that a suit showing a mere semblance of a cause of action should proceed to trial. Although the Plaint, drafted in person, lacked precision and legal clarity, it was not groundless. The alleged adverse possession claim against the 1st Defendant raised triable issues that could not be resolved summarily.

p. 2
02

Whether the Plaintiffs had capacity to sue in a representative capacity

Holding

Lack of authority was noted but was not a ground to strike out the suit

Reasoning

The court found no evidence that the 1st Plaintiff had authority from the six other Plaintiffs to sue on their behalf, noting the pleadings were drafted in the singular. However, it held this omission was not sufficient to strike out the suit, particularly since the pleadings and prayers consistently referred to the 1st Defendant.

p. 3
03

Whether a cause of action existed against the 2nd and 3rd Defendants

Holding

None was disclosed; the suit against them was struck out

Reasoning

A perusal of the Plaint revealed no claim whatsoever against Popo Abdallah and Swak Mbwana. The court agreed with the Defendants that there was no cause of action against them and no reason for their joinder, warranting striking out the suit against them with costs.

p. 3

Legal principles established

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  • A suit should not be summarily dismissed unless it is plainly and obviously hopeless and incurable by amendment; a mere semblance of a cause of action should be allowed to go to trial
  • On an application under Order 2 Rule 15(1)(a), no evidence is admissible; the defect must appear from the pleadings alone

Court orders

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  1. 1.Suit struck out with costs as against the 2nd and 3rd Defendants
  2. 2.Suit to proceed as against the 1st Plaintiff and the 1st Defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)
  • Civil Procedure RulesOrder 2 Rule 15(2)
  • Civil Procedure RulesOrder 37 Rule 7

Cases cited (3)

  • D.T. Dobie & Co. Ltd –vs- Muchina
    (1982) 1 KLR 1
  • Trust Bank Ltd –vs- Amin Company Ltd & Another
    (2000) KLR 164
  • Joseph Gitau & 2 Others –vs- Ukay Estate Ltd
    Nairobi HCCC No. 813 of 2004 (Unreported)
Jurisdiction invoked
Order 2 Rule 15(1) of the Civil Procedure Rules

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, "Karisa Kahindi Karisa & Family And 6 others v Mwalimu Hamisi Mwahadzi & 2 others [2020] KEELC 1853 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1853/eng@2020-06-25

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