Richard Juma Okayo & another v Philip Onyando Okindo & 7 others [2021] KEELC 3727 (KLR)
The bottom line
#The court refused to strike out a land fraud claim against later buyers and lenders, ruling the case must proceed to a full trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit against the 6th and 7th Defendants should be struck out for failing to disclose a reasonable cause of action
The application fails; the plaint discloses triable issues on title and the charge notwithstanding the abatement of the suit against the 4th Defendant
The court applied Order 2 Rule 15 and the D.T. Dobie caution that merits should not be determined at the striking-out stage. The suit against the 4th Defendant abated under Order 24 Rule 4(3), but the 1st to 3rd Defendants were accused of participating in the fraud in their individual capacities, leaving triable questions on whether the 6th Defendant obtained good title and whether it could validly charge the plot to the 7th Defendant.
Effect of the death and non-substitution of the 4th Defendant
The suit against the 4th Defendant abated one year after his death, i.e. on 18th February 2017, but the suit against the remaining Defendants subsists
Order 24 Rule 4 provides for substitution of a deceased Defendant's legal representative and abatement after one year. No substitution occurred, so the suit abated against the 4th Defendant alone. The court held that assuming the Plaintiffs' case could not proceed without the 4th Defendant would pre-empt the Plaintiffs' case without hearing it.
Whether striking out would prejudice the 6th and 7th Defendants
No prejudice that cannot be compensated in costs
The court found that the prayers sought would affect the 6th and 7th Defendants (as registered owner and chargee respectively), making their participation necessary, and that any prejudice from defending the suit could be compensated in costs. The court reiterated Mutungi J.'s observation that the 7th Defendant's interest as chargee required it to be enjoined.
Legal principles established
#- Where one of two or more Defendants dies and no application to join the legal representative is made within one year, the suit abates only as against the deceased Defendant and subsists against the others
- A reasonable cause of action is one with some chance of success considering only the allegations in the plaint
- The power to strike out a pleading is discretionary and must be exercised with the greatest care and caution
Court orders
#- 1.The application dated 17th November 2020 by the 6th and 7th Defendants seeking striking out of the suit against them is dismissed
- 2.Costs of the application awarded to the Plaintiffs
- Jurisdiction invoked
- Order 2 Rule 15 and Order 51 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Juma Okayo & another v Philip Onyando Okindo & 7 others [2021] KEELC 3727 (KLR)", Case Analysis (2021). Not stated in ruling (Kisii Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3727/eng@2021-04-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.