Kiki Investment Ltd v Kanyamwi Trading Co Ltd & 3 others (Environment & Land Case E004 of 2020) [2022] KEELC 2751 (KLR)
The bottom line
#A Kenyan land court refused to halt a property dispute, ruling that weak-defence objections can't stop a case that raises genuine issues for trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit should be struck out under Order 2 rule 15 of the Civil Procedure Rules
The application failed; the 2nd defendant did not show the suit discloses no reasonable cause of action or is an abuse of process
The court invoked the well-established principles in Elijah Sikona v Mara Conservancy that striking out must be exercised sparingly and in clear and obvious cases, and that where a pleading raises a triable issue the suit must go to full trial. The applicant filed no written submissions and did not demonstrate that the plaint was groundless, fanciful or brought for a collateral purpose. The court therefore declined to strike out the proceedings.
Whether the suit should be stayed pending the estate proceedings in Nairobi SC No 26 of 1985
Stay refused because there is no similarity between the suits; the plaintiff is not a party to and has no interest in the estate proceedings
For a stay under section 6 of the Civil Procedure Act there must be a previously instituted suit between the same parties or over the same matters in question. The court found no similarities between the two suits: the plaintiff is not a party to the High Court Family Division estate matter and has no interest in the estate. Further, the suit property LR NO 6564/11 (IR NO 199760) is registered in the name of the 1st defendant, a limited liability company, and the court has jurisdiction under article 162(2)(b).
Whether the court had jurisdiction to entertain the matter
Yes, under article 162(2)(b) of the Constitution the Environment and Land Court has jurisdiction over the dispute
The court affirmed its own jurisdiction under article 162(2)(b) of the Constitution, which vests the Environment and Land Court with jurisdiction over disputes relating to land. Since the dispute concerns suit property LR NO 6564/11 (IR NO 199760) registered in the name of the 1st defendant company, the matter properly fell within the court's mandate and the objection by way of striking out could not succeed on jurisdictional grounds.
Legal principles established
#- Striking out is a jurisdiction to be exercised sparingly and only in clear and obvious cases; a party should not be deprived of a full trial unless the matter is plain and obvious
- A cause of action is a factual situation entitling one person to a remedy against another; if a pleading raises a triable issue, the suit ought to go to trial
- A stay of proceedings under section 6 of the Civil Procedure Act requires a suit between the same parties or matters in question in the pending suit; absent commonality, no stay lies
Court orders
#- 1.The 2nd defendant's notice of motion dated June 15, 2021 is dismissed
- 2.Costs of the application awarded to the plaintiff/respondent
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; article 159(2) and sections 1A, 1B, 3A and 6 of the Civil Procedure Act (Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiki Investment Ltd v Kanyamwi Trading Co Ltd & 3 others (Environment & Land Case E004 of 2020) [2022] KEELC 2751 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2751/eng@2022-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.