Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2021] KEELC 1911 (KLR)

Michael Kipkorir Maina & another v Stephen Kipkorir Ruto [2021] KEELC 1911 (KLR)

Environment and Land Court
29 September 2021
4,290 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court refused to strike out a land dispute suit, ruling that triable issues must be tested at trial, not decided on paper.

What this practically means

#

Executive summary

#
The defendant, Stephen Kipkorir Ruto, moved the court by notice of motion dated 19th November, 2020 under Order 2 Rule 15 of the Civil Procedure Rules and sections 2A and 2B of the Civil Procedure Act, seeking striking out of the plaintiffs' suit on the grounds that it disclosed no reasonable cause of action, was scandalous, frivolous or vexatious, would prejudice fair trial, was an abuse of process, and was time barred. He argued the suit land was allotted to his mother in 1975, gifted to him, and lay within the ongoing Tingwa Chesubet Adjudication Section, so that no civil proceedings could lie without the adjudication officer's consent. The plaintiffs opposed, asserting the 1st plaintiff was allotted the land in 1990 and sold it to the 2nd plaintiff in 2011, that no title deed had been issued so limitation and adverse possession were inapplicable, and that triable issues existed. Justice S. M. Kibunja, applying the established principles that striking out must be exercised sparingly in the clearest of cases, held the plaint raised a reasonable cause of fit for trial, that the claim was neither frivolous nor vexatious nor an abuse of process, and that whether the suit was time barred required evidence at trial. On adjudication, the court placed the burden on the defendant under section 106 of the Evidence Act; absent a certificate from the adjudication officer under section 30(5) of the Land Adjudication Act, the claim that the land lay within an adjudication section was unproved. However, the court found the defence dated 12th September, 2019 was filed by counsel not then on record and struck it out with costs to the plaintiffs. The motion was dismissed with costs to the plaintiffs.

Key legal issues

#
01

Whether the suit discloses a reasonable cause of action and should be struck out under Order 2 Rule 15

Holding

The application fails; the plaint raises a reasonable cause of action worth going to trial

Reasoning

On an application under Order 2 Rule 15(1)(a) no evidence is admissible; the court considers only the pleadings. The plaint avers the suit land was allotted to the 1st plaintiff, occupied from 1993 to 2011, then sold to the 2nd plaintiff, with the defendant trespassing in 2011. The defence contests this, asserting the land is part of Kipkabus forest. These are triable issues requiring a full trial. Striking out is a discretionary jurisdiction to be exercised sparingly in the clearest of cases.

p. 3
02

Whether the suit land lies within an ongoing adjudication section so that consent of the adjudication officer was a precondition to filing suit

Holding

The defendant failed to prove that the land is within an adjudication section; no certificate under section 30(5) of the Land Adjudication Act was produced

Reasoning

The party alleging that land is within an adjudication section bears the burden of proof under section 106 of the Evidence Act. Letters from the District Commissioner, the chief and the District Surveyor did not indicate the land was in an ongoing adjudication area. A certificate signed by the adjudication officer is conclusive evidence of that status; without it the court cannot make a finding that the section 30 bar applies, even though the section is mandatory once proved.

p. 4
03

Whether the plaintiffs' suit is time barred

Holding

A determination of limitation requires evidence; it cannot be resolved on pleadings

Reasoning

The plaintiffs allege the defendant forcibly took possession in 2011 and suit was filed in 2016, while the defendant avers he moved onto his own land, Tingwa/Chesubet/426, in 2004. The conflicting averments mean the question of whether the suit is statute barred, including any adverse possession argument, can only be resolved after evidence is tendered at trial.

p. 5
04

Whether the defence filed on 12th September, 2019 by a firm not on record is valid

Holding

The defence was filed by counsel not on record and is struck out with costs to the plaintiffs

Reasoning

The record shows the 12th September, 2019 defence was filed before the firm of M/s Tororei and Company Advocates filed its Notice of Change of Advocate on 20th November, 2020. The related application of the same date was withdrawn on 19th November, 2020. The court found the concern valid: counsel was not on record when filing the defence, and that defence should have been withdrawn with the motion.

p. 5

Legal principles established

#
  • The power to strike out pleadings must be exercised sparingly and only in clear and obvious cases; if a pleading raises a triable issue the suit ought to go to trial
  • He who alleges bears the burden of tendering proof under section 106 of the Evidence Act
  • A certificate signed by an adjudication officer under section 30(5) of the Land Adjudication Act is conclusive evidence that land is within an adjudication section; courts cannot entertain civil proceedings on land in an ongoing adjudication section without the adjudication officer's written consent
  • Under section 27 of the Civil Procedure Act, costs follow the event

Court orders

#
  1. 1.The defendant's Notice of Motion dated 19th November, 2020 is dismissed with costs to the plaintiffs
  2. 2.The defence dated 12th September, 2019, filed by counsel not on record for the defendant, is struck out with costs to the plaintiffs

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 2 Rule 15(1)(a)-(d), (2), (3)
  • Civil Procedure Act, Chapter 21, Laws of KenyaSections 2A and 2B; Section 27
  • Evidence Act, Chapter 80, Laws of KenyaSection 106
  • Land Adjudication ActSections 29(3), 30(1) and 30(5)

Cases cited (8)

  • G. B. M KARIUKI VS NATION MEDIA GROUP LTD & 4 OTHERS
    (2012) eKLR
  • CABRO EAST AFRICA LTD V ROSOGA INVESTMENTS LTD
    (2013) eKLR
  • MOHAMMAD HASSIM PONDOR & ANOTHER V FALCON TRAVEL SERVICES LIMITED & 3 OTHERS
    [2014] eKLR
  • SATYA BHAMA GANDHI V DIRECTOR OF PUBLIC PROSECUTIONS & 3 OTHERS
    [2018] eKLR
  • REUBEN MWONGELA M’ITELEKWA (SUING AS THE LEGAL REPRESENTATIVE OF THE ESTATE OF M’ITELEKWA M’MUCHEKE NAITURI ALIAS M’ITELEKWA MUCHEKE) V PAUL KIGEA NABEA & 2 OTHERS
    [2019] eKLR
  • Silverio Akubu & 4 Others vs. Charles Baariu Salasio & 3 others, Meru ELC Petition No. 29 of 2018
    Meru ELC Petition No. 29 of 2018
  • JUSTUS NTUITI v MWIRICHIA KAUMBUTHU
    [2004] eKLR
  • KITISU JULIUS SILE & 60 OTHERS VS. CHAIRPERSON OLOIRIEN ADJUDICATION SECTION B COMMITTEE & 3 OTHERS
    (2016) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a land dispute; application brought under Order 2 Rule 15 of the Civil Procedure Rules, 2010 and sections 2A and 2B of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Michael Kipkorir Maina & another v Stephen Kipkorir Ruto [2021] KEELC 1911 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1911/eng@2021-09-29

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