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ELCDismissedNakuru ELC 114 of 2018· [2021] KEELC 1008 (KLR)

Elizabeth Chebet Langat & 3 others v Joel Kipngenoh Byomdo [2021] KEELC 1008 (KLR)

Environment and Land Court
16 November 2021
2,411 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to strike out a land suit, confirming that striking out is a drastic step only for hopeless cases.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru (Mwangi Njoroge J) on the defendant's application dated 27/08/2020 seeking striking out of the plaintiffs' suit under Order 2 Rule 15(1)(b) and (d) and Order 51 of the Civil Procedure Rules. The applicant argued that the plaintiffs lacked locus standi; that the suit property, Nakuru/Olenguruone/Kiptagich/59, had been removed from the Schedule of the estate of Samuel Cheruiyot Arap Langat (deceased) in Nairobi Succession Cause No. 2691 of 2013 by consent; and that any adverse possession claim was extinguished by the deceased's death. The plaintiffs responded that the property was removed by consent pending the hearing and determination of this very suit, relied on authority that adverse possession claims survive for the estate, and urged that striking out is draconian and reserved for plain cases. The court held that the grounds pleaded did not fall within Order 2 Rule 15(1)(b), (c) or (d); that, having not invoked Rule 15(1)(a), the applicant could not rely on affidavit evidence on locus standi; that whether the adverse possession claim survived the deceased went to the merits and required a substantive hearing; and that the removal of the property from the schedule was a temporal, consent-based act premised on the suit's determination. Applying D.T. Dobie & Company (Kenya) Ltd v Muchina, the court found the case unsuitable for summary termination and dismissed the application with costs on 16 November 2021.

Key legal issues

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01

Whether an application under Order 2 Rule 15(1)(b),(c) and (d) can sustain a striking-out application premised mainly on locus standi and extinction of cause of action

Holding

No; the grounds pleaded did not fit those limbs, and the locus standi assertion required evidence, which is inadmissible on such an application in any event

Reasoning

The court found the applicant never pleaded that the plaint was scandalous, frivolous, vexatious, an abuse of process, or prejudicial to fair trial. Having not invoked Rule 15(1)(a), the applicant could not rely on affidavit evidence; the locus standi claim required a peek into evidence, so the supporting affidavit was of no value and the application did not qualify under the invoked provisions.

p. 2
02

Whether the cause of action in adverse possession was extinguished by the death of the alleged possessor

Holding

Not determinable at interlocutory stage; it goes to the merits of the main suit

Reasoning

The court observed there is little authority on whether a grant enables administrators to claim adverse possession on behalf of a deceased. The applicant cited no case law directly on the point, and extinction of a cause of action is a substantive issue addressable only after a full hearing of evidence in the suit.

p. 3
03

Whether removal of the suit property from the Schedule of the estate's assets in the succession cause defeats the suit

Holding

No; the removal was by consent, temporal, and predicated on the hearing and determination of this suit

Reasoning

The consent in Nairobi Succession Cause No. 2691 of 2013 provided for the property to be removed from the list of the deceased's assets pending the hearing and determination of Nakuru ELC 114 of 2018. The suit had not been heard on merits, so the removal could not ground a striking-out order; the applicant himself had sought the removal.

p. 3

Legal principles established

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  • The court's power to strike out pleadings is to be exercised sparingly and cautiously and no suit ought to be summarily dismissed unless it is plainly and obviously hopeless and beyond redemption by amendment

Court orders

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  1. 1.The application dated 27/8/2020 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActOrder 2 Rule 15(1)(a)-(d) and (2), Order 2 Rule 1, Order 12 rule 2, Order 51 Rule 1 and 3
  • Limitation of Actions ActSection 38(1) and (2)
  • Law Reform ActSection 2(1)

Cases cited (5)

  • Re Estate of Seth Namiba Ashuma (deceased)
    2020 eKLR
  • Karuntimi Raiji vs M'Makinya M'Itunga
    2013 eKLR
  • Cooperative Merchant Bank Ltd Vs George Frederick Wekesa
    Civil Appeal No 54 Of 1999
  • Alumark Investments Limited v Tom Otieno Anyango & 4 others
    [2018] eKLR
  • D.T. Dobie & Company (Kenya) Ltd. vs. Muchina
    (1982) KLR 1
Jurisdiction invoked
Order 2 Rule 15(1)(b) and (d) and Order 51 Rule 1 and 3 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, "Elizabeth Chebet Langat & 3 others v Joel Kipngenoh Byomdo [2021] KEELC 1008 (KLR)", Case Analysis (2021). Nakuru ELC 114 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1008/eng@2021-11-16

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