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ELCDismissed· [2021] KEELC 981 (KLR)

Purity Muthoni Plein v National Oil Corporation of Kenya & another [2021] KEELC 981 (KLR)

Environment and Land Court
18 November 2021
1,078 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to throw out a land dispute, confirming that weak-looking cases deserve their day in court.

What this practically means

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Executive summary

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The 1st Defendant moved the court by notice of motion dated 13th May 2019 under Order 2 Rule 15(a) & (d), Order 51 Rule 1 and Section 3A of the Civil Procedure Act seeking dismissal of the Plaintiff's suit for failure to disclose a reasonable cause of action and as an abuse of the court process. It argued the suit was premature and speculative because NEMA had not yet approved its application to construct a service station on its property, and that the Plaintiff had failed to exhaust statutory dispute resolution avenues under EMCA and the physical planning legislation. The Plaintiff opposed, asserting fraudulent dealings by the Defendants and unlawful approval of the project by the 2nd Defendant, and contending the application had not met the threshold for striking out a suit. Framing two issues - whether the suit disclosed a reasonable cause of action and whether it was an abuse of process - the court applied the classic test in D.T Dobie & Co (K) Ltd v Muchina, holding that a cause of action need only show some chance of success on the plaint's allegations, and that the availability of alternative dispute resolution avenues does not negate a cause of action. On abuse of process, relying on Trust Bank Limited v H.S Amin & Company Ltd, the court found no malice, bad faith or ulterior purpose, and held that alternative statutory remedies are not necessarily evidence of abuse. The application was dismissed with no order as to costs. The ruling was delivered at Nyahururu on 18th November 2021 via Microsoft Teams.

Key legal issues

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01

Whether the suit discloses a reasonable cause of action against the 1st Defendant

Holding

It does; applying D.T Dobie, the mere possibility of alternative dispute resolution avenues does not mean the suit discloses no reasonable cause of action

Reasoning

Applying the test in D.T Dobie & Co (K) Ltd v Muchina, a cause of action exists if the plaint's allegations show some chance of success. The court was not satisfied the suit was hopeless or incurable by amendment, so striking out under Order 2 Rule 15 was unwarranted even though the NEMA licence had not been granted.

p. 2
02

Whether the suit is an abuse of the court process

Holding

It is not; there was no evidence of malice, bad faith, dishonesty or an improper or ulterior purpose

Reasoning

Relying on Trust Bank Limited v H.S Amin & Company Ltd, the court held that abuse requires an improper or ulterior purpose. The Plaintiff was vindicating perceived rights, and the mere existence of alternative statutory remedies under EMCA and physical planning legislation did not render the suit abusive.

p. 2

Legal principles established

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  • A suit discloses a reasonable cause of action if it has some chances of success when only the allegations in the plaint are considered; it need not be a strong case
  • A suit ought not to be summarily dismissed unless it is so hopeless and beyond redemption that it plainly discloses no reasonable cause of action, incurable by amendment
  • The availability of alternative remedies before statutory bodies does not, without more, amount to abuse of court process

Court orders

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  1. 1.The 1st Defendant's notice of motion dated 13th May, 2019 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 2 Rule 15(a) & (d)
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Act (Cap. 21)Section 3A
  • Environmental Management and Co-ordination Act (EMCA)Not specified
  • Physical Planning Act (now repealed)Not specified
  • Constitution of Kenya, 2010Article 40

Cases cited (2)

  • D.T Dobie & Co (K) Ltd v Muchina
    [1982] KLR 1
  • Trust Bank Limited v H.S Amin & Company Ltd
    [2000] eKLR
Jurisdiction invoked
Order 2 Rule 15(a) & (d), Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act (Cap. 21)

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, "Purity Muthoni Plein v National Oil Corporation of Kenya & another [2021] KEELC 981 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/981/eng@2021-11-18

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