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ELCAllowed· [2021] KEELC 3271 (KLR)

Patrick Gitonga Muguku v Gilbert Maina Ngei & 3 others [2021] KEELC 3271 (KLR)

Environment and Land Court
12 May 2021
COChristine Ochieng
1,558 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a land buyer's case against an innocent third-party purchaser, holding the buyer should sue the sellers who took his money.

What this practically means

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Executive summary

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The 4th Defendant, a purchaser for value of land parcel NGONG/NTASHART/5033 (also referred to as KAJIADO/NTASHART/5033), applied by Notice of Motion dated 25th May 2018 to strike out the Plaintiff's suit against it under Order 2 Rule 15(1) of the Civil Procedure Rules, 2010, on grounds that the suit disclosed no reasonable cause of action against it and was frivolous, vexatious and an abuse of process. The Plaintiff opposed through Grounds of Opposition, arguing he would suffer no prejudice if the matter went to full hearing and that he was dealing with the suit property. Only the 4th Defendant filed submissions. The court framed two issues: whether the suit against the 4th Defendant should be struck out, and who should bear its costs. Examining the pleadings, the court found the Plaintiff was not registered as owner of the suit land when the 4th Defendant purchased it, and the Amended Plaint showed the Plaintiff had bought a portion of NGONG/NTASHART/755, not the suit land. The Plaintiff's claim for refund and damages lay against the 1st to 3rd Defendants, who admitted receiving his purchase price under a Sale Agreement dated 19th December 2011 and subsequently selling the land to the 4th Defendant. Applying D.T. Dobie & Muchina and related authorities, the court held the suit disclosed no reasonable cause of action against the 4th Defendant and struck it out from the suit. On costs, relying on Supermarine Handling Services Ltd v Kenya Revenue Authority, the court held costs follow the event and ordered the 1st to 3rd Defendants to jointly bear the 4th Defendant's costs.

Key legal issues

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01

Whether the Plaintiff's suit against the 4th Defendant disclosed no reasonable cause of action warranting striking out

Holding

The suit against the 4th Defendant was struck out as it disclosed no reasonable cause of action against it.

Reasoning

The court examined the pleadings and found the Plaintiff was not registered as owner of the suit land when the 4th Defendant purchased it, and the Amended Plaint showed the Plaintiff bought a portion of NGONG/NTASHART/755 yet to be subdivided, not the suit land itself. The Plaintiff's remedy lay against the 1st to 3rd Defendants, with whom he contracted and who received his purchase price. Applying Order 2 Rule 15(1) and the cited authorities, the court found no cause of action against the 4th Defendant.

p. 2
02

Who should bear the costs of the 4th Defendant

Holding

The 1st to 3rd Defendants were ordered to jointly bear the 4th Defendant's costs.

Reasoning

The court found that the 1st to 3rd Defendants were responsible for the dispute, having admitted entering into a Sale Agreement with the Plaintiff, obtaining most of the purchase price, and thereafter selling the suit land to the 4th Defendant. Relying on the principle that costs follow the event, the court directed them to pay for the inconvenience caused to the 4th Defendant.

p. 3

Legal principles established

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  • The power to strike out pleadings should be exercised after considering all facts but the court must not embark on the merits of the case, which is reserved for the trial judge.
  • Costs follow the event unless the court for good reason otherwise orders.

Court orders

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  1. 1.The 4th Defendant is struck out from the suit
  2. 2.The costs of the 4th Defendant shall be borne jointly by the 1st to 3rd Defendants

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 2 Rule 15(1)

Cases cited (4)

  • Crescent Construction Co. Ltd Vs Delphis Bank Ltd
    (2007) eKLR
  • Delphis Bank Limited v Caneland Limited
    [2014] eKLR
  • D.T. Dobie & Company (Kenya) Ltd vs Muchina
  • Supermarine Handling Services Ltd vs. Kenya Revenue Authority
    Civil Appeal No. 85 of 2006
Jurisdiction invoked
Order 2 Rule 15(1) of the Civil Procedure Rules, 2010

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, "Patrick Gitonga Muguku v Gilbert Maina Ngei & 3 others [2021] KEELC 3271 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3271/eng@2021-05-12

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