Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment· [2021] KEELC 1479 (KLR)

Market Plaza Limited v City Council of Nairobi & 3 others [2021] KEELC 1479 (KLR)

Environment and Land Court
7 October 2021
3,564 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

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

#
This ruling of the Environment and Land Court at Nairobi by S. Okong'o J determines a Notice of Motion dated 29th September, 2019 by the 2nd defendant in a long-running trespass suit over L.R No. 209/1855/2 at the junction of Koinange Street and Market Street, Nairobi, filed by the plaintiff in July 2000. The 2nd defendant sought striking out of the suit against it for disclosing no reasonable cause of action, dismissal of the entire suit as an abuse of process, or removal of its name for improper joinder, contending that it acted as agent of the 1st defendant (Nairobi City County, formerly City Council of Nairobi) and that the plaintiff's title had been revoked by the Registrar of Titles on 26th November, 2010, a revocation upheld by the High Court and Court of Appeal. The plaintiff opposed, maintaining a claim in trespass and asserting that no court had sanctioned the revocation of its title. The court applied D.T. Dobie & Company (K) Ltd v Joseph Mbaria Muchina and related authorities, holding that striking out is Draconian and reserved for the clearest of cases. It found the plaint disclosed a reasonable cause of action in trespass against the 2nd defendant; whether the 2nd defendant acted as agent of the 1st defendant was a triable issue with no prima facie evidence of agency. The revocation of title, whose validity the High Court directed be determined in this suit, could not render the suit an abuse of process. The 2nd defendant was properly joined. The application was dismissed with costs to the plaintiff.

Key legal issues

#
01

Whether the plaint disclosed a reasonable cause of action against the 2nd defendant

Holding

It did, because the claim in trespass against the 2nd defendant was properly pleaded and the agency defence was a triable issue

Reasoning

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.

p. 4
02

Whether the suit was an abuse of the process of the court given the revocation of the plaintiff's title

Holding

It was not, because the validity of the title and its revocation must be determined in this suit as directed by the High Court

Reasoning

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.

p. 4
03

Whether the 2nd defendant was improperly joined

Holding

The 2nd defendant was properly joined since a cause of action was disclosed against it

Reasoning

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.

p. 4

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. 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.