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ELCDismissedNotice of Motion dated 12th November 2020 (suit characterized by amended plaint dated 14th June 2019)· [2021] KEELC 968 (KLR)
Mary Njeri Mburu (suing as the legal representative of the estate of Karugu Guandai) & another v Bob Robert Drani (Sued as the legal representative of the estate of Patrick Fruto Drani) [2021] KEELC 968 (KLR)
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·~3 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The Defendant, Bob Robert Drani, brought a notice of motion dated 12th November 2020 under Order 2 Rule 15(1)(a)-(d) and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking declaratory orders that the Plaintiffs' suit was a non-starter for want of capacity and cause of action, striking out of the amended plaint dated 14th June 2019 and the entire suit, and costs. The application was supported by the Defendant's affidavit, in which he contended that Winfred Nyambura Karugu is the sole widow and personal representative of the Estate of Peter Karugu Guandai under a limited grant in Nairobi High Court Succession Cause No. 1931 of 2009. The 1st Plaintiff, Mary Njeri Mburu, opposed through a replying affidavit, and the 2nd Plaintiff filed grounds of opposition. The court noted the matter was part heard: the 1st Plaintiff had testified that she held a limited grant in Machakos Succession Cause No. 548 of 2011, which remained valid and unrevoked, and the 2nd Plaintiff had been properly enjoined with leave. Applying the principle from Lavington Security Ltd vs Consolidated Bank of Kenya Ltd, drawing on D.T. Dobie and Geminia Insurance, that striking out pleadings before trial is a draconian step reserved for the clearest of cases, the court held the Plaintiffs ought to be heard and the Defendant could raise his issues at trial without prejudice. The application was dismissed with costs abiding the outcome of the main suit.
Key legal issues
#01
Whether the Plaintiffs' suit should be struck out for want of capacity and cause of action
Holding
The application was dismissed; the Plaintiffs should be heard on their claim and capacity/cause-of-action issues raised at trial
Reasoning
The court noted the matter was part heard with the 1st Plaintiff having testified, that her limited grant was validly issued and not revoked, and that the 2nd Plaintiff was properly enjoined with the amended plaint filed with leave. Guided by authority that striking out is draconian, the court held no prejudice would befall the Defendant if the matter proceeded to conclusion.
p. 2
Legal principles established
#- Striking out pleadings before full hearing is a draconian step to be used sparingly and only in the clearest of cases
Court orders
#- 1.The notice of motion dated 12th November 2020 is dismissed
- 2.Costs to abide the outcome of the main suit
- Jurisdiction invoked
- Order 2 Rule 15(1)(a),(b),(c) and (d) and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Njeri Mburu (suing as the legal representative of the estate of Karugu Guandai) & another v Bob Robert Drani (Sued as the legal representative of the estate of Patrick Fruto Drani) [2021] KEELC 968 (KLR)", Case Analysis (2021). Notice of Motion dated 12th November 2020 (suit characterized by amended plaint dated 14th June 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/968/eng@2021-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.