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ELCOtherNot stated in the excerpt (Plaint; ELC Eldoret)· [2021] KEELC 3631 (KLR)

Tarzan Ltd v Koima Developers Ltd & another [2021] KEELC 3631 (KLR)

Environment and Land Court
21 April 2021
AOA. O. OmbwayoSKS. M. Kibunja
4,890 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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Tarzan Ltd sued Koima Developers Ltd (1st defendant) and Elgeyo Border Investment Ltd (2nd defendant) seeking specific performance of an agreement for the purchase of 100 acres out of LR 10930, 6802 and 7557/2, or alternatively a refund, rescission of an agreement over Eldoret Municipality Block 14/29, return of the title and a permanent injunction. The 1st defendant, by an application dated 30th August 2019 under Order 2 rule 15 of the Civil Procedure Rules, sought striking out of the suit against it as scandalous, frivolous, vexatious and an abuse of process, or for disclosing no cause of action, and setting aside the injunction of 7th December 2018. The 2nd defendant admitted the plaint's averments. The court restated the settled principles that striking-out jurisdiction is exercised sparingly and in clear and obvious cases, and that triable issues must go to trial. It found no scandalous, vexatious or prejudicial matter in the plaint. However, on the facts it held that the agreement of 26th January 2014 between the plaintiff and the 1st defendant was superseded by the offer of 9th August 2014 accepted between the plaintiff and the 2nd defendant, so any claim lay only against the 2nd defendant. The transaction over Block 14/29 was between the 1st defendant and Phylis Jerotich Mutwol, the plaintiff's director, who received the full Kshs 20,000,000 purchase price and executed a transfer. The court allowed the application, struck out the suit against the 1st defendant, discharged the injunction of 7th December 2018, and awarded costs of the application to the plaintiff. The suit proceeds against the 2nd defendant; the 1st defendant's counterclaim remains untouched by this ruling.

Key legal issues

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01

Whether the plaint discloses a cause of action against the 1st defendant

Holding

The suit against the 1st defendant was struck out for disclosing no cause of action and improper joinder.

Reasoning

The court found the 1st defendant's agreement of 26th January 2014 with the plaintiff was superseded by the offer of 9th August 2014 between the plaintiff and the 2nd defendant, so the plaintiff's claim could only lie against the 2nd defendant. The transaction over Eldoret Municipality/Block 14/29 was between the 1st defendant and Phylis Jerotich Mutwol, who received the full purchase price and executed a transfer; the plaintiff was not a party to it and the parcels are unrelated.

p. 6
02

Whether the plaint was scandalous, frivolous, vexatious or an abuse of process

Holding

The plaint was found not to be scandalous, vexatious, prejudicial or an abuse of process.

Reasoning

Applying the well-established tests for each ground under Order 2 rule 15, the court found no indecent, offensive or improper matter, no foundationless or fanciful claim, and no ambiguity or immaterial matter that would embarrass or delay fair trial. The application succeeded instead on the absence of a cause of action and improper joinder.

p. 5

Legal principles established

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  • Striking out under Order 2 rule 15 is a jurisdiction to be exercised sparingly and in clear and obvious cases
  • If a pleading raises a triable issue the suit ought to go to trial

Court orders

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  1. 1.The plaintiff's suit against the 1st defendant is struck out for disclosing no cause of action and for the 1st defendant having been improperly enjoined in the proceedings
  2. 2.The orders of injunction issued by the court on 7th December 2018 against the 1st defendant are set aside, vacated and/or discharged in their entirety
  3. 3.Costs of the application provided to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 rule 15
  • Constitution of Kenya 2010Article 40
  • Land Registration Act 2012Sections 24, 25 and 26
Jurisdiction invoked
Order 2 rule 15 of the Civil Procedure Rules

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, "Tarzan Ltd v Koima Developers Ltd & another [2021] KEELC 3631 (KLR)", Case Analysis (2021). Not stated in the excerpt (Plaint; ELC Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3631/eng@2021-04-21

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