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ELCDismissedNot stated in the judgment (ruling on Notice of Motion dated 24th November 2020 in the Originating Summons)· [2021] KEELC 27 (KLR)

Hamisi Tsuma Mwero & 11 others v Colfax Holdings Limited & another [2021] KEELC 27 (KLR)

Environment and Land Court
29 November 2021
ADADDRAYA E. DENA
2,073 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A landowner asking for vacant possession before trial lost because Kenyan courts only grant such orders after hearing all evidence at a full hearing.

What this practically means

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Executive summary

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The 1st Defendant, through Harji Govind Ruda, moved the Environment and Land Court at Kwale by Notice of Motion dated 24th November 2020 seeking vacant possession of Plot No. LR. NO.4526, CR.8727, a declaration that the 1st Plaintiff is a stranger to the suit, expungement of deceased Plaintiffs' names, and striking out of the Amended Originating Summons as incurably defective for want of a supporting affidavit. It argued the suit had abated under Order 24 Rule 3 for failure to substitute deceased plaintiffs, that the plaintiffs lacked diligence, and relying on Ernest Chaba v Aniale, that the 1st Plaintiff lacked locus standi as he was not in possession. The Plaintiffs opposed via grounds of contention that vacant possession could not issue without trial, that the amended Originating Summons was regular pursuant to the court's earlier ruling of 29th July 2020, and that the supporting affidavit requirements under Order 37 had been satisfied. The court framed three issues: abatement, vacant possession at interlocutory stage, and defectiveness of the pleading. It held that questions concerning the deceased plaintiffs were for the main suit since surviving plaintiffs remained, extended time under Section 3A for compliance with the 29th July 2020 orders, refused vacant possession and the 'stranger' declaration as they would amount to final determination without a hearing, and upheld the amended Originating Summons in light of the amended affidavit on record and Article 159(2)(d). The Motion was dismissed with costs following the event.

Key legal issues

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01

Whether the suit abated as against deceased Plaintiffs

Holding

The court declined to declare abatement; the question whether deceased plaintiffs can claim adverse possession is for the main suit, and parties were allowed extended time to amend pleadings per the earlier ruling

Reasoning

The earlier ruling of 29th July 2020 had already dealt with expungement and abatement, expunging certain plaintiffs who had withdrawn or consented. Since surviving plaintiffs who have not withdrawn remain, the claim regarding deceased plaintiffs is a matter for trial. The court invoked Section 3A of the Civil Procedure Act to extend time for compliance with the 29th July 2020 orders.

p. 3
02

Whether vacant possession can be granted at interlocutory stage

Holding

No - such an order would be a final determination; each party must have its day in court and tender and test evidence

Reasoning

Applying the DT Dobie principles on orders amounting to final determination, the court held that as long as parties remain on both sides of the suit, each must be allowed to tender evidence and be cross-examined before final orders issue. Substantive justice requires hearing both sides on merit.

p. 3
03

Whether the amended Originating Summons was incurably defective for want of a supporting affidavit

Holding

No - an amended affidavit was on record and Article 159(2)(d) mandates substantive justice over technicalities

Reasoning

The court found an amended affidavit sworn on 8th August 2016 and received by the registry on 9th August 2016 annexed to the amended Originating Summons. Given that, and the constitutional directive to favour substance over form, the prayer to strike out the pleading failed.

p. 3

Legal principles established

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  • Mandatory orders such as vacant possession that amount to a final determination of a suit cannot be granted at interlocutory stage
  • A court should aim at sustaining rather than terminating a suit unless it is beyond redemption and incurably defective (DT Dobie principle)
  • Observations made during a site visit cannot be used to strike out a party since no hearing takes place during a site visit

Court orders

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  1. 1.The Notice of Motion dated 24th November 2020 is dismissed
  2. 2.Costs shall follow the event

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 24 Rule 3
  • Civil Procedure RulesOrder 2 Rule 15(1)
  • Civil Procedure RulesOrder 37
  • Civil Procedure RulesOrder 9 Rule 2(c)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (2)

  • Ernest Chaba & Another Vs. Jane Mboga Aniale
    (2018) eKLR
  • DT Dobie & Company (Kenya) Ltd Vs Muchina
    (1982) KLR
Jurisdiction invoked
Inherent powers of the court under Section 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution

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, "Hamisi Tsuma Mwero & 11 others v Colfax Holdings Limited & another [2021] KEELC 27 (KLR)", Case Analysis (2021). Not stated in the judgment (ruling on Notice of Motion dated 24th November 2020 in the Originating Summons). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/27/eng@2021-11-29

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