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ELCDismissed· [2020] KEELC 2812 (KLR)

John Muikambi Gitau v Trustees Caritas Mariana Holy Family Children’s Home, Thika & another [2020] KEELC 2812 (KLR)

Environment and Land Court
7 May 2020
LGL. Gacheru
2,947 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiff, John Muikambi Gitau, sued for a declaration that land parcel Block 23/1108 in Thika Municipality belongs to him absolutely and for vacant possession, alleging he purchased it in May 2002 from Daniel Wainaina Kang'onga (deceased), later licensed the 1st Defendant onto it by an agreement of 29th May 2004, and that the Defendants encroached from 2005 despite a demand letter. The Defendants never entered appearance or filed a defence, but through Ham Lagat & Associates filed a Notice of Motion dated 22nd March 2018 seeking suspension of time for filing a defence, a locus in quo visit, retrieval of the file in Nairobi Succession Cause No. 2592 of 2005, striking out of the Plaint and dismissal of the suit, and costs. They argued the estate's administratrix sold the land to them under an order of Justice Maraga of 22nd February 2011, that the Plaintiff concealed material facts, was charged in a criminal court, and that the Plaint disclosed no cause of action and was an abuse of process. The Plaintiff opposed, contending the application was a disguised second jurisdictional challenge after the dismissal of a preliminary objection, and raised triable issues. L. Gacheru J dismissed the application entirely with costs to the Plaintiff, holding that striking out is a drastic remedy, that the Plaint raised triable issues requiring full trial, that the site-visit and file-retrieval prayers were premature, that there was nothing to suspend regarding a defence, and directed the Defendants to cease filing delaying interlocutory applications.

Key legal issues

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01

Whether the Plaint disclosed a reasonable cause of action warranting striking out under Order 2 Rule 15

Holding

The Plaint discloses a reasonable cause of action and triable issues; striking out was refused

Reasoning

The Plaintiff pleaded purchase of the suit property in 2002 from the deceased vendor, a licence agreement with the Defendants in 2004 before the succession proceedings, and encroachment in 2005. The discretion to strike out under Order 2 Rule 15 must be exercised cautiously; allegations of forgery and ownership require evidence and cross-examination at full trial, not determination on affidavit.

p. 3
02

Whether the locus in quo visit and retrieval of the succession cause file should be ordered

Holding

Both prayers refused as premature

Reasoning

There is no dispute as to possession or location of the suit property, so a site visit serves no purpose at this stage. Calling for the succession file would amount to the court assembling the Defendants' defence and exhibits, which they should file themselves; the file may be called for later if needed.

p. 3
03

Whether time for filing defence and hearing should be suspended

Holding

Refused; nothing to suspend and delay contravenes the overriding objective

Reasoning

The Defendants never entered appearance nor filed a defence since service in 2016. Timelines for filing pleadings are set by the Civil Procedure Act and Rules, and a defence can now only be filed with leave. Suspending hearing would reward the Defendants' delay, contrary to sections 1A and 1B on expeditious disposal.

p. 4

Legal principles established

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  • Striking out a pleading is a drastic remedy exercised cautiously and judiciously; a suit raising even a mere semblance of a cause of action or triable issues must go to full trial
  • Allegations of forgery cannot be resolved on affidavit evidence but only by testing evidence through cross-examination at trial

Court orders

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  1. 1.The Notice of Motion dated 22nd March 2018 is dismissed entirely
  2. 2.Costs of the application to the Plaintiff/Respondent
  3. 3.The Defendant directed to cease filing numerous interlocutory applications which delay prosecution of the matter

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B(1)
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 2 Rule 15
  • Civil Procedure RulesOrder 5 Rule 1(1)
  • Civil Procedure RulesOrder 21 rule 1
  • Constitution of KenyaFair trial provisions

Cases cited (5)

  • Dev Surinder Kumar Bij Vs Agility Logistics Limited
    Civil Suit No. 311 of 2013 (2014) eKLR
  • D.T. Dobie & Company (Kenya) Ltd Vs Muchina
    [1982] KLR 1
  • Francis Kamande Vs Vanguard Electrical Services Ltd
    (1998) eKLR
  • Letang vs Cooper
    (1965) 1 QB 232
  • Yaya Towers Ltd Vs Trade Bank Ltd (in Liquidation)
    Court of Appeal No. 35 of 2000
Jurisdiction invoked
Sections 1A, 1B(1) and 3A of the Civil Procedure Act; Order 2 Rule 15 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, "John Muikambi Gitau v Trustees Caritas Mariana Holy Family Children’s Home, Thika & another [2020] KEELC 2812 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2812/eng@2020-05-07

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