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ELCDismissedELC Case (Notice of Motion dated 11th February 2021)· [2021] KEELC 1622 (KLR)

CKK Estate (1973) Limited v County Government of Kiambu & another [2021] KEELC 1622 (KLR)

Environment and Land Court
8 October 2021
LGL. Gacheru
2,064 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Thika refused to strike out Kiambu County Government's defence, meaning the trespass dispute over land and destroyed coffee trees will go to full trial.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 11th February 2021 in which the Plaintiff, through its Director Samuel Karuga Koinange, sought to strike out the 1st Defendant's Statement of Defence dated 9th December 2020, to have judgment entered as prayed in the Plaint dated 1st October 2020, and to be awarded costs. The Plaintiff alleged that the 1st Defendant's tractor entered its private land, L.R No. 134/8, on 24th June 2020, dug up a section and destroyed 102 mature coffee trees, in breach of earlier judgments (including ELC Case No. 428 of 2017) declaring that no public road passed through the land. The 1st Defendant opposed the application through grounds of opposition invoking Sections 143 and 156 of the Land Act on public rights of way, and contending that a joint surveyor's report was needed to prove trespass. The court, L. Gacheru J, framed one issue: whether the Plaintiff was entitled to the orders sought. Applying the principles in D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina and Saudi Arabian Airlines Corporation v Sean Express Services Ltd, the court held that striking out is a draconian remedy to be used sparingly and only on the clearest of cases. The Defence denied trespass and raised the need for a joint survey; the issues of trespass and quantum of damages were triable and had to be determined at trial. The application was dismissed entirely with costs in the cause, and the suit was directed to proceed to full trial on the merits.

Key legal issues

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01

Whether the 1st Defendant's Statement of Defence should be struck out and judgment entered for the Plaintiff

Holding

The application was dismissed; the Defence raises triable issues that must be determined at trial

Reasoning

The court applied the D.T. Dobie and Saudi Arabian Airlines principles that striking out is a draconian remedy reserved for the clearest of cases. The Defence denies trespass and creation of the road and requires a joint surveyor's report; issues of trespass and quantum of damages were denied and thus must be tested at trial. The prior judgment in ELC Case No. 428 of 2017 and the survey report, though relied on by the Plaintiff, needed to be weighed against evidence at trial.

p. 3

Legal principles established

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  • A suit should not be summarily dismissed unless it is plainly and obviously hopeless and incurable by amendment; courts should aim at sustaining rather than terminating suits
  • The power to strike out a defence should be used sparingly and only where the defence is a sham raising no bona fide triable issue
  • A defence that raises triable issues denied by the plaintiff should proceed to trial

Court orders

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  1. 1.The Notice of Motion Application dated 11th February 2021 seeking to strike out the Statement of Defence dated 9th December 2020 is dismissed entirely
  2. 2.Costs of the application to be in the cause
  3. 3.The suit to be determined on merit

Authorities

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Legislation

  • Land ActSection 143
  • Land ActSection 156
  • Constitution of Kenya, 2010Articles 47, 50 and 159

Cases cited (3)

  • D.T. Dobie & Company (Kenya) Limited …Vs… Joseph Mbaria Muchina & another
    Civil Appeal 37 of 1978 [1980] eKLR
  • Saudi Arabian Airlines Corporation …Vs… Sean Express Services Ltd
    Civil Case No. 79 of 2013 [2014] eKLR
  • Patel v E.A. Cargo Handling Services Ltd
    [1974] E.A. 75
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court in an interlocutory application in a trespass suit

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, "CKK Estate (1973) Limited v County Government of Kiambu & another [2021] KEELC 1622 (KLR)", Case Analysis (2021). ELC Case (Notice of Motion dated 11th February 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1622/eng@2021-10-08

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