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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaint discloses a reasonable cause of action against the applicants
The plaint discloses a reasonable cause of action which must be proved at trial; the application to strike out fails.
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.
Whether the 3rd, 4th and 5th defendants were improperly joined
The joinder was proper since relief arising from the same transaction is alleged against them, satisfying Order 1 rule 3.
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.
Legal principles established
#- 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
#- 1.The application dated 18th November 2018 is dismissed
- 2.Costs to be in the cause
- Jurisdiction invoked
- Order 2 Rule 15(a) and Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.