Michael Kipkorir Maina & another v Stephen Kipkorir Ruto [2021] KEELC 1911 (KLR)
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
#Key legal issues
#Whether the suit discloses a reasonable cause of action and should be struck out under Order 2 Rule 15
The application fails; the plaint raises a reasonable cause of action worth going to trial
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.
Whether the suit land lies within an ongoing adjudication section so that consent of the adjudication officer was a precondition to filing suit
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
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.
Whether the plaintiffs' suit is time barred
A determination of limitation requires evidence; it cannot be resolved on pleadings
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.
Whether the defence filed on 12th September, 2019 by a firm not on record is valid
The defence was filed by counsel not on record and is struck out with costs to the plaintiffs
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.
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.The defendant's Notice of Motion dated 19th November, 2020 is dismissed with costs to the plaintiffs
- 2.The defence dated 12th September, 2019, filed by counsel not on record for the defendant, is struck out with costs to the plaintiffs
- 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.
- Okeyo v Thanya's Plaza Ltd (Environment and Land Case E035 of 2025) [2026] KEELC 4816 (KLR)[2026] KEELC 4816 (KLR)9 Jul 2026
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.