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ELCDismissedNot stated in the judgment· [2021] KEELC 216 (KLR)

Mungai Ngaruiya v Boniface Muindi Mulli & 5 others [2021] KEELC 216 (KLR)

Environment and Land Court
20 December 2021
COChristine Ochieng
1,414 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to strike a land approval authority out of an ownership dispute because it approved the subdivision and issued rates demands to both sides.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Machakos determined the 4th Defendant's Chamber Summons application dated 12th April 2021, brought under Section 3A of the Civil Procedure Act and Orders 2 Rule 15(1) & (2) and 1 Rule 10(2) of the Civil Procedure Rules, seeking striking out of the Plaintiff's suit against it and costs. The 4th Defendant argued it was wrongly enjoined, was not a necessary party, does not deal with issuance of title, and that no reasonable cause of action was disclosed against it, the dispute being one of land ownership between the Plaintiff and the 1st Defendant over LR No. 12715/134. The Plaintiff opposed, pointing to the 4th Defendant's approval of subdivision of the suit land without his consent, and demand notices and payment receipts for rates issued by the 4th Defendant to both him and the 1st Defendant. Relying on Civicon Limited v. Kivumatt Limited, Ramji Megji Gudka Ltd and DT Dobie v Muchina, the court reiterated that striking out is a drastic remedy to be exercised sparingly and only in the clearest of cases, and that the court bears an independent duty to ensure all necessary and proper parties are before it. On the pleadings and documents, the judge found the 4th Defendant had indeed approved the subdivision and issued rates demands which were paid, that the Plaintiff disclosed a reasonable cause of action against it, and that its presence was necessary for the effectual and complete determination of the ownership dispute. The application was dismissed, with costs in the cause.

Key legal issues

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01

Whether the Plaintiff's suit against the 4th Defendant should be struck out

Holding

The application was dismissed; the Plaintiff disclosed a reasonable cause of action against the 4th Defendant, which is a necessary and proper party

Reasoning

The court noted the 4th Defendant granted approval for subdivision of the suit land and both the Plaintiff and 1st Defendant received and paid rates demand notices from it. Applying Order 2 Rule 15(1) and the Court of Appeal authorities on striking out pleadings, the court held the suit discloses a reasonable cause of action against the 4th Defendant and that its presence is necessary to enable effectual and complete determination of the ownership dispute.

p. 2
02

Who should bear the costs of the 4th Defendant

Holding

Costs were awarded neither to the 4th Defendant nor otherwise, but left in the cause

Reasoning

Having found the application unmerited, the court declined to award costs to the 4th Defendant and instead made the conventional order that costs be in the cause, deferring the question of costs to the conclusion of the main suit.

p. 3

Legal principles established

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  • The power to strike out pleadings must be sparingly exercised and only in the clearest of cases
  • The court has an independent duty to ensure all necessary and proper parties, and no others, are before it

Court orders

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  1. 1.The 4th Defendant's Chamber Summons application dated 12th April 2021 is disallowed/unmerited
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure Rules, 2010Order 2 Rule 15(1) & (2)
  • Civil Procedure Rules, 2010Order 1 Rule 10(2)

Cases cited (7)

  • Temple Point Resort v. Accredo AG & 5 Others
    (2018) eKLR
  • Peter Irungu Wainaina v. Chefe Njihia & 2 Others
    (2018) eKLR
  • Civicon Limited v. Kivumatt Limited & 2 Others
    (2015) eKLR
  • Kenya Anti-Corruption Commission v. Lucy Kerubo Ogeto
    (2010) eKLR
  • County Government of Kwale vs. Kenya Airports Authority
    (2017) eKLR
  • Ramji Megji Gudka Ltd –Vs- Alfred Morfat Omundi Michira & 2 Others
    [2005] eKLR
  • DT DOBIE & COMPANY (KENYA) LTD. V. MUCHINA
    [1982] KLR 1
Jurisdiction invoked
Section 3A of the Civil Procedure Act, Order 2 Rule 15(1) & (2) and Order 1 Rule 10(2) 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, "Mungai Ngaruiya v Boniface Muindi Mulli & 5 others [2021] KEELC 216 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/216/eng@2021-12-20

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