Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedBungoma ELC Case (Notice of Motion dated 28th November 2020)· [2021] KEELC 2714 (KLR)

Salome Wakhome & another v Tafroza Muhonja Alunga & 4 others [2021] KEELC 2714 (KLR)

Environment and Land Court
1 July 2021
3,003 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court refused to evict land occupants without a full trial, ruling their 26-year occupation claims deserved a proper hearing.

What this practically means

#

Executive summary

#
By a plaint filed on 19th February 2020, the plaintiffs, administrators of the Estate of Josephat Wakhome Nabiswa, sought eviction of the defendants from land parcel Bungoma/Ndalu/41, alleging trespass on 8 acres. The 1st, 2nd and 4th defendants pleaded that they were bona fide purchasers from Patrick Juma Wakhome and raised adverse possession and limitation defences. Gilbert Kisiang'ani was joined as third party. The plaintiffs and the third party moved the court by Notice of Motion dated 28th November 2020 under Order 2 Rule 15(1)(b) and Order 36 Rule 1(1)(b) seeking striking out of the defence and entry of summary judgment, arguing the defendants' claims were res judicata following the dismissal of their objection in Kitale High Court Succession Cause No 13 of 2014 by Chemitei J on 3rd April 2019. The defendants opposed, maintaining the defence raised triable issues. The court first expunged the affidavits sworn by both counsel, holding counsel should not depone to facts their available clients could depone to. Applying DT Dobie v Muchina and related authorities, Justice Olao held the defence raised serious triable issues of adverse possession and limitation that could not have been determined in the succession cause. He further held Order 36 Rule 1 inapplicable as there was no liquidated demand, no landlord-tenant relationship, and a defence had been filed, and that denying the defendants a hearing would breach Article 50(1). The application was dismissed with costs to the 1st, 2nd and 4th defendants.

Key legal issues

#
01

Whether the defence should be struck out as frivolous, vexatious or an abuse of process

Holding

The defence raises bona fide triable issues of adverse possession and limitation that could not have been litigated in the succession cause, so it should not be struck out

Reasoning

The court applied the cautionary principles in DT Dobie v Muchina and its progeny: the power to strike out must be exercised sparingly and without embarking on the merits. The defendants pleaded open and notorious occupation for over 26 years and bona fide purchase, raising issues of adverse possession and limitation of actions that were beyond the scope of the Kitale succession cause, which concerned distribution of the estate among beneficiaries.

p. 3
02

Whether summary judgment under Order 36 Rule 1(1)(b) was available

Holding

Summary judgment was unavailable because there was no liquidated demand, no landlord-tenant relationship, and a defence had been filed

Reasoning

The court held Order 36 Rule 1 inapplicable on three grounds. Even had the rule applied, summary judgment is a draconian measure granted only in the clearest of cases where no bona fide triable issue exists. Denying the defendants a hearing would violate Article 50(1) of the Constitution.

p. 4
03

Counsel swearing affidavits on behalf of clients who are available

Holding

The affidavits of both counsel were expunged because counsel should stay out of the arena where clients can depone to matters of fact

Reasoning

The court observed that while counsel may depone to pure questions of law, issues of fact belong to the parties. Both parties were present and had themselves deponed to the factual matters, so the counsel affidavits were removed from the record.

p. 3

Legal principles established

#
  • A defence which raises a triable issue is not synonymous with a defence which must succeed; striking out and summary judgment are reserved for the clearest of cases
  • To deny a party a hearing should be the last resort of a court

Court orders

#
  1. 1.Expunged from the record the affidavits of Mr Henry Kepha Onyando dated 8th March 2021 and Mr Jeremiah Ongeri Samba dated 28th November 2020
  2. 2.Dismissed the Notice of Motion dated 28th November 2020 with costs to the 1st, 2nd and 4th defendants

Authorities

#

Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)
  • Civil Procedure RulesOrder 36 Rule 1(1)(b)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSection 7
  • Constitution of KenyaArticle 50(1)

Cases cited (8)

  • D. T. Dobie & Company (Kenya) Ltd v Muchina
    1982 KLR 1
  • Crescent Construction Company Ltd v Delphis Bank Ltd
    2007
  • Fremar Construction Company Ltd v Minakash N. Shah
    C.A Civil Appeal No 85 of 2002 (NBI)
  • Patel v E.A Cargo Handling Services Ltd
    1974 E.A 75
  • Kenya Trade Combine Ltd v Shah
    C.A Civil Appeal No 193 of 1999
  • Lalji t/a Vakked Building Contractors v Casousel Ltd
    1989 KLR 386
  • Job Kilach v Nation Media Group
    C.A Civil Appeal No 94 of 2006 [2015 eKLR]
  • Sebei District Administration v Gasyali
    1968 E.A 300
Jurisdiction invoked
Order 2 Rule 15(1) and Order 36 Rule 1 of the Civil Procedure Rules; Section 7 of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Salome Wakhome & another v Tafroza Muhonja Alunga & 4 others [2021] KEELC 2714 (KLR)", Case Analysis (2021). Bungoma ELC Case (Notice of Motion dated 28th November 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2714/eng@2021-07-01

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