Salome Wakhome & another v Tafroza Muhonja Alunga & 4 others [2021] KEELC 2714 (KLR)
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
#Key legal issues
#Whether the defence should be struck out as frivolous, vexatious or an abuse of process
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
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.
Whether summary judgment under Order 36 Rule 1(1)(b) was available
Summary judgment was unavailable because there was no liquidated demand, no landlord-tenant relationship, and a defence had been filed
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.
Counsel swearing affidavits on behalf of clients who are available
The affidavits of both counsel were expunged because counsel should stay out of the arena where clients can depone to matters of fact
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.
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.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.Dismissed the Notice of Motion dated 28th November 2020 with costs to the 1st, 2nd and 4th defendants
- 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.