Kahia Transporters Ltd & another v Chunky Ltd & another [2021] KEELC 3910 (KLR)
The bottom line
#Kenya's Mombasa Land Court refused to cancel a 2017 injunction or throw out a land dispute, ruling that conflicting title deeds can only be resolved through a full trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex-parte injunction orders of 24th July 2017 should be set aside
The application to set aside was refused; the orders were directed at the 1st and 2nd defendants who had not complained and who had agreed to abandon interlocutory applications for full trial
The court noted that injunctive orders are discretionary equitable reliefs granted on an interlocutory basis without deciding disputed facts. The orders of 24th July 2017 were directed to the 1st and 2nd defendants, not the applicant. The 1st and 2nd defendants, the plaintiffs and interested parties had agreed on 1st April 2019 to abandon all pending interlocutory applications in favour of the main suit. No injustice or hardship from the orders was demonstrated, so no basis existed for setting them aside.
Whether the plaintiffs' suit should be struck out and dismissed
The suit should not be struck out; with competing titles on the same properties, only a full trial can determine the genuine owner
Applying D.T. Dobie and Yaya Towers, the court held that striking out is a drastic remedy exercised only where a suit is beyond redemption and incurable by amendment, without venturing into the merits. Here both plaintiffs and defendants claim ownership of the suit properties, each accusing the other of holding fraudulently procured titles. With the plaintiffs holding titles, the conflict of evidence can only be resolved at trial, so the suit must be sustained.
Legal principles established
#- An order for an injunction may be discharged, varied or set aside on application by any party dissatisfied with it (Order 40 Rule 7)
- The power to strike out pleadings should be exercised only after considering all facts and without expressing opinions on the merits; a suit should only be struck out if beyond redemption
- A plaintiff is entitled to pursue his claim however improbable his chances of success unless the claim is bound to fail or is an abuse of process
- The court exercises its discretion to set aside an ex-parte order only to avoid an injustice or hardship resulting from the order
Court orders
#- 1.The 3rd defendant's notice of motion dated 7th October 2020 is dismissed with costs to the plaintiffs
- Jurisdiction invoked
- Inherent powers of the court and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kahia Transporters Ltd & another v Chunky Ltd & another [2021] KEELC 3910 (KLR)", Case Analysis (2021). Not stated in judgment (Mombasa Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3910/eng@2021-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.