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ELCDismissedNotice of Motion dated 21st January, 2021 (suit number not stated in the judgment extract)· [2022] KEELC 1640 (KLR)

Michael Kalani Muatha v Kyalo Mwikya & another [2022] KEELC 1640 (KLR)

Environment and Land Court
8 February 2022
MCMbogo C.G
1,792 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The defendants/applicants brought a Notice of Motion dated 21st January 2021 under Order 51 Rules 1 and 13 and Order 2 Rule 15(1) of the Civil Procedure Rules seeking to strike out the plaintiff's suit as disclosing no reasonable cause of action, as scandalous, frivolous, vexatious and an abuse of court process. They argued the suit was effectively an appeal against the Minister's decision in Minister's Tribunal Case Number 287 of 2010 of 12th September 2018, which is final under Section 29 of the Land Adjudication Act and challengeable only by judicial review, and that the plaintiff filed an ordinary suit because the six-month judicial review period had lapsed. They also contended that letters of administration were unnecessary in Land Adjudication Act proceedings and that the plaintiff never objected to their capacity before the Minister. The plaintiff/respondent opposed, arguing striking-out grounds must be specifically pleaded, that the Minister's judgment was obtained unlawfully because the defendants lacked letters of administration, and that striking out is a drastic remedy to be exercised sparingly. The court framed one issue: whether the suit ought to be struck out. Applying Order 2 Rule 15(1) and the settled principles in D.T. Dobie, Yaya Towers and Blue Shield Insurance, the court held that striking out is a drastic, discretionary remedy used sparingly and only against a complete sham, and that assessing the applicants' grounds would require combing through the evidence, a task reserved for trial. The application was dismissed with costs to the plaintiff/respondent.

Key legal issues

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01

Whether the plaintiff's suit should be struck out under Order 2 Rule 15(1) of the Civil Procedure Rules

Holding

The application was dismissed; striking out is drastic and discretionary, and assessing whether a cause of action exists would require the court to examine the evidence, which is reserved for trial

Reasoning

The court restated the settled principles from D.T. Dobie and Yaya Towers that the power to strike out ends in driving a party from the judgment seat, is permissive rather than mandatory, and should be used very sparingly and only where a pleading is clearly untenable or a complete sham. Because determining the applicants' grounds would require combing through the evidence the applicants wished to rely on, the court could not conclude shortly and conclusively that the claim was bound to fail.

p. 2

Legal principles established

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  • A party is entitled to pursue a claim however implausible unless the opponent can demonstrate shortly and conclusively that the claim is bound to fail or is an abuse of process; the power to strike out must be exercised sparingly and only in exceptional cases
  • In determining whether a pleading discloses a reasonable cause of action, the court must not embark on the merits or comb through the evidence

Court orders

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  1. 1.The notice of motion application dated 21st January, 2021 is dismissed
  2. 2.Costs of the application awarded to the plaintiff/respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1 and 13
  • Civil Procedure RulesOrder 2 Rule 15(1)
  • Civil Procedure RulesOrder 53
  • Civil Procedure RulesOrder 24
  • Law Reform ActSection 9(2)
  • Land Adjudication ActSection 29; Section 12
  • Fair Administrative Action ActSections 2 and 3

Cases cited (9)

  • Ngari Kiranga versus Jerusha Mucongo Kiura & Others
    [2020] eKLR
  • Timotheo Mako versus Manunga Ngochi
    (1976-80) KLR 1136
  • Kivanga Estates Limited versus National Bank of Kenya Limited
    [2017] eKLR
  • Devsurinder Kumar Bij versus Agility Logistics Limited
    [2014] eKLR
  • Grace Wairimu Gakio versus Emily Chelagat Kargat & 2 Others
    [2019] eKLR
  • Yaya Towers Limited v Trade Bank Limited (In Liquidation)
    Civil Appeal No. 35 of 2000
  • Blue Shield Insurance Company Ltd vs. Joseph Mboya Oguttu
    [2009] eKLR
  • D.T. Dobie and Company (Kenya) Ltd vs Muchina
    (1982) KLR 1
  • Cail Zeiss Stiftung vs Ranjuer & Keeler Ltd and others (No.3)
    (1970) ChpD 506
Jurisdiction invoked
Order 51 Rule 1 and 13 and Order 2 Rule 15(1) 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, "Michael Kalani Muatha v Kyalo Mwikya & another [2022] KEELC 1640 (KLR)", Case Analysis (2022). Notice of Motion dated 21st January, 2021 (suit number not stated in the judgment extract). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1640/eng@2022-02-08

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