Elizabeth Chebet Langat & 3 others v Joel Kipngenoh Byomdo [2021] KEELC 1008 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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
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.
Whether the cause of action in adverse possession was extinguished by the death of the alleged possessor
Not determinable at interlocutory stage; it goes to the merits of the main suit
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.
Whether removal of the suit property from the Schedule of the estate's assets in the succession cause defeats the suit
No; the removal was by consent, temporal, and predicated on the hearing and determination of this suit
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.
Legal principles established
#- 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
#- 1.The application dated 27/8/2020 is dismissed with costs
- Jurisdiction invoked
- Order 2 Rule 15(1)(b) and (d) and Order 51 Rule 1 and 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.