Market Plaza Limited v City Council of Nairobi & 3 others [2021] KEELC 1479 (KLR)
The bottom line
#The Environment and Land Court refused to strike out a trespass suit, ruling that disputed agency and title revocation questions must be decided at trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaint disclosed a reasonable cause of action against the 2nd defendant
It did, because the claim in trespass against the 2nd defendant was properly pleaded and the agency defence was a triable issue
The plaintiff pleaded that the 2nd defendant, with the permission of the 1st defendant, entered the suit property and dumped waste. The 2nd defendant's assertion that it acted as agent of a disclosed principal was not supported by prima facie evidence and could only be resolved at trial. The strike-out power being draconian, it is exercised only in the clearest of cases, which this was not.
Whether the suit was an abuse of the process of the court given the revocation of the plaintiff's title
It was not, because the validity of the title and its revocation must be determined in this suit as directed by the High Court
The Registrar of Titles revoked the plaintiff's title in 2010 while the suit was pending. The High Court found the Registrar had no power to revoke title without due process but declined to set aside the revocation, directing that ownership be determined in this suit; the Court of Appeal upheld that decision. Since the court is yet to pronounce on the validity of the revocation, the suit is neither groundless nor beyond redemption by amendment.
Whether the 2nd defendant was improperly joined
The 2nd defendant was properly joined since a cause of action was disclosed against it
Having found that the Amended Plaint and Further Amended Plaint disclose a reasonable cause of action in trespass against the 2nd defendant, the court concluded that its joinder was proper and that misjoinder did not arise.
Legal principles established
#- The power to strike out pleadings is draconian and should be exercised with great circumspection and only in the clearest of cases
- Whether a defendant acted as an agent of a disclosed principal is a matter of fact to be determined at trial, not on a striking-out application
- An action is an abuse of the process of the court where it is absolutely groundless
- Where a superior court has directed that the issue of ownership be determined in a pending suit, a title revocation whose validity is undetermined cannot render that suit an abuse of process
Court orders
#- 1.The 2nd defendant's Notice of Motion application dated 29th September, 2019 is dismissed with costs to the plaintiff
- Jurisdiction invoked
- Order 1 Rule 10(2) and Order 2 Rules 15(1)(a) and (d) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Market Plaza Limited v City Council of Nairobi & 3 others [2021] KEELC 1479 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1479/eng@2021-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.