Registered Trustees Redeemed Gospel Church v Osman (Environment & Land Case 387 of 2021) [2022] KEELC 37 (KLR)

High Court of Kenya at Nairobi (court not expressly named in the judgment)

28 April 2022

EWE. K. Wabwoto

495 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~2 min to read original · ~4 min brief

The bottom line

Kenya's High Court struck out a land suit because the plaintiff sued the wrong person, showing courts expect you to verify ownership before filing.

What this practically means

Executive summary

This ruling determined the Defendant's Notice of Motion dated 2nd December 2021 seeking to strike out the Plaintiff's suit with costs. The Defendant swore an affidavit deposing that he had no interest in the parcel of land known as L.R No. 209/19728, that he was neither its registered owner nor the agent of its owner. The application was canvassed by written submissions pursuant to directions issued on 26th February 2022: the Defendant filed submissions through Musdaf & Co. Advocates, and the Plaintiff through Muriithi Kireria & Associates. The Plaintiff opposed striking out, contending the suit arose from an action in rem affecting its right to property, and asked instead for leave to amend the pleadings and enjoin the appropriate party. The court noted that although the Plaintiff professed an intention to amend, no amendment had been effected even months after the application was filed. It held that even with an amendment, no cause of action could be maintained against a defendant who was not the registered proprietor of the suit property; the amendment would simply bring in a new defendant, and the Plaintiff offered no explanation of what claim, if any, remained against the present defendant. Observing that striking out is draconian and reserved for the clearest of cases, the court nonetheless found this to be such a case, faulting the Plaintiff for lack of due diligence in identifying the correct party. The suit was struck out with no orders as to costs.

Key legal issues

Whether a suit against a defendant who is not the registered proprietor or agent of the owner of the suit property should be struck out

Holding

Yes - this is a clear case where striking out ought to issue; no amendment can maintain a cause of action against a defendant with no interest in the land

Reasoning

The defendant swore he had no interest in L.R No. 209/19728 and was neither its registered owner nor the owner's agent. Although the plaintiff sought leave to amend and join the correct party, no amendment had been effected months after filing. The court reasoned that no amendment could sustain a claim against the present defendant, who would be left without any claim against him. Due diligence was required before filing.

p. 1

Legal principles established

An order for striking out is draconian and must be resorted to only in the clearest of cases
A party must conduct due diligence to ascertain the correct defendant before filing suit; a suit against a party with no interest in the subject property cannot be salvaged by amendment

Court orders

1.The suit is struck out
2.No orders as to costs

Jurisdiction invoked: Not expressly stated; first-instance civil suit jurisdiction (land dispute over L.R No. 209/19728)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Registered Trustees Redeemed Gospel Church v Osman (Environment & Land Case 387 of 2021) [2022] KEELC 37 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/37/eng@2022-04-28

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