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ELCDismissedNot stated in judgment· [2021] KEELC 1108 (KLR)

Omar Muduza Munga & Idd Ngala v Eliud Mwamunga, Bulkon Builders Limited, OCS Bamburi Police Station, Deputy County Commissioner – Kisauni & OCPD Kisauni (Environment & Land Case 188 of 2018) [2021] KEELC 1108 (KLR)

Environment and Land Court of Kenya
9 November 2021
997 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court refused to strike out a land dispute suit, confirming that weak-looking claims must be decided at trial, not thrown out early.

What this practically means

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Executive summary

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This was a ruling on a notice of application dated 18th November 2018 brought by the defendants/applicants under Order 2 Rule 15(a) and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking that the suit be struck out or, in the alternative, that the names of the 3rd, 4th and 5th defendants be struck out from the suit on the ground that the plaint disclosed no cause of action against them. The applicants argued that the plaint revealed no specific acts or omissions by the 3rd, 4th and 5th defendants capable of crystallising a cause of action. The respondents countered that paragraph 6 of the plaint set out the grievance against the applicants, including threats of eviction and harassment from the suit premises, and that these issues ought to be ventilated at trial. The court noted that the 1st applicant, Bulkon Builders Limited, did not oppose the application. Reviewing the authorities, including Co-Operative Merchant Bank Ltd v Wekesa, Yaya Towers Ltd v Trade Bank Ltd and D.T. Dobie & Co Kenya Ltd v Muchina, the court reiterated that striking out is a draconian remedy reserved for plain cases and that a suit showing even a semblance of a cause of action must proceed to trial. The court found that the plaint alleged the applicants were illegally demolishing the plaintiffs' houses and threatening eviction from plot No. 322/1/MN, raising a reasonable cause of action subject to proof, and that joinder under Order 1 rule 3 was proper. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the plaint discloses a reasonable cause of action against the applicants

Holding

The plaint discloses a reasonable cause of action which must be proved at trial; the application to strike out fails.

Reasoning

Order 2 Rule 15(2) bars admission of evidence on such applications, so the plaint must be fatally defective on its face. The plaint alleges the applicants are illegally demolishing the plaintiffs' houses and threatening eviction from plot No. 322/1/MN. Following Yaya Towers and D.T. Dobie, a claim showing a semblance of a cause of action must proceed to trial. The application was accordingly unmerited and dismissed with costs in the cause.

p. 2
02

Whether the 3rd, 4th and 5th defendants were improperly joined

Holding

The joinder was proper since relief arising from the same transaction is alleged against them, satisfying Order 1 rule 3.

Reasoning

The court reproduced Order 1 rule 3, which permits joinder of all persons against whom any right to relief arising out of the same act or transaction is alleged to exist. Given the plaint's allegations of demolition and threatened eviction by the applicants, the plaintiffs alleged a right to relief against them arising from the same transaction, so their names could not be struck out.

p. 2

Legal principles established

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  • Striking out a pleading is a draconian act reserved for plain cases
  • A party is entitled to pursue a claim however implausible unless the claim is bound to fail or is an abuse of process
  • A suit should not be summarily dismissed if it shows even a semblance of a cause of action curable by amendment

Court orders

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  1. 1.The application dated 18th November 2018 is dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)(a)-(d)
  • Civil Procedure RulesOrder 2 Rule 15(2)
  • Civil Procedure RulesOrder 1 rule 3
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (3)

  • Co-Operative Merchant Bank Ltd. v George Fredrick Wekesa
    Civil Appeal No. 54 of 1999
  • Yaya Towers Limited vs Trade Bank Limited (In Liquidation)
    Civil Appeal No. 35 of 2000
  • D.T. Dobie & Company Kenya Limited vs Joseph Mbaria Muchina & Another
    [1980] eKLR
Jurisdiction invoked
Order 2 Rule 15(a) and Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Omar Muduza Munga & Idd Ngala v Eliud Mwamunga, Bulkon Builders Limited, OCS Bamburi Police Station, Deputy County Commissioner – Kisauni & OCPD Kisauni (Environment & Land Case 188 of 2018) [2021] KEELC 1108 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1108/eng@2021-11-09

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