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ELCDismissedPetition dated February 12, 2020 (Notice of Motion dated November 1, 2021)· [2022] KEELC 3062 (KLR)

Dawat – E - Hadiya (Kenya) Registered Trustees v Kaingu & 5 others (All Sued in a Representative Capacity also, on Behalf of other 104 Persons in Occupation of the Petitioners Parcel of Land.) (Constitutional Petition 7 of 2021) [2022] KEELC 3062 (KLR)

Environment and Land Court
18 May 2022
3,207 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to strike out a landowner's petition, ruling that ending a case before a full hearing is reserved for the clearest situations.

What this practically means

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Executive summary

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The respondents/applicants filed a Notice of Motion dated November 1, 2021 seeking to strike out a petition by which the petitioner, registered proprietor of Plot No. MN/1/1392 (CR No. 1884) at Bombolulu, Mombasa, sought eviction of the respondents and enforcement of its constitutional property rights under Articles 22, 23 and 40. The applicants argued the dispute was essentially a private land-ownership claim requiring an ordinary plaint, not a constitutional petition, and that they were prejudiced because they could neither file a defence nor a counterclaim in a petition. The petitioner, through a trustee's replying affidavit, maintained it was the registered freehold owner and that the Mutunga Rules provided an alternative to a counterclaim in the form of a Cross-Petition. In a ruling delivered on May 18, 2022, Hon. Justice L. L. Naikuni framed two issues: whether the petition should be struck out, and costs. Applying Kivanga Estates, Olympic Escort and Millennium Chuma, the court held that striking out is a draconian last resort; that the applicants' omnibus application improperly combined evidence-barring and evidence-dependent grounds under Order 2 Rule 15, making it fatally defective; and that respondents in a constitutional petition may raise their grievances by Cross-Petition. The application was dismissed, the petition was set down for hearing by affidavit and viva voce evidence, mutual leave was granted for replies and supplementary affidavits including cross-petitions, and costs of the application were awarded to the petitioners, to be in the cause.

Key legal issues

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01

Whether the Petition seeking eviction based on adverse possession claims should be struck out as an abuse of process

Holding

The application to strike out was dismissed; the applicants failed to demonstrate the petition was scandalous, frivolous, vexatious or an abuse of process, and their omnibus application was procedurally defective

Reasoning

The court adopted the Kivanga Estates principle that striking out is a draconian, last-resort jurisdiction. It noted the applicants combined all grounds under Order 2 Rule 15(1), including ground (a) which bars evidence, with grounds requiring affidavit evidence, a fatal procedural defect per Olympic Escort and Millennium Chuma. Further, under the Mutunga Rules, respondents may file a Cross-Petition as an alternative to a counterclaim, curing their stated prejudice.

p. 7
02

Whether a constitutional petition is a competent vehicle for enforcement of private property rights against private parties

Holding

Implied in the refusal to strike out: the Petition was properly before the court under Articles 22, 23 and 40 and the Mutunga Rules

Reasoning

The petitioners contended the suit was properly anchored on Articles 22, 23 and 40 and the Mutunga Rules, satisfying the Anarita Karimi threshold, and that respondents had a remedy via Cross-Petition under rule 15(3). The court did not strike the petition out and directed it to proceed to full hearing by affidavit and viva voce evidence, effectively accepting it was properly instituted.

p. 6

Legal principles established

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  • Striking out a pleading is a draconian jurisdiction of last resort, reserved for the clearest of cases where the prescribed procedure is followed
  • An application to strike out that combines the ground of disclosing no reasonable cause of action (which bars evidence) with grounds requiring affidavit evidence is fatally defective
  • Under rules 10(2) and 15(3) of the Mutunga Rules, a respondent to a constitutional petition may file a Cross-Petition raising the same matters as a counterclaim

Court orders

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  1. 1.The Notice of Motion application dated 1st November 2021 is dismissed for lack of merit
  2. 2.The Petition to be heard and determined by both affidavit and viva voce evidence on 26th October, 2022
  3. 3.Respondents granted 21 days to file their Replies to the Petition and Cross Petition
  4. 4.Petitioner granted 21 days leave to file a Supplementary affidavit to the Replies on the Petition and Replies to the Counter Petitions
  5. 5.Respondents granted 7 days leave to file Supplementary affidavit on issues raised in the replies to the Cross Petition filed by the Petitioners
  6. 6.Award of costs to the Petitioners for the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3A and 63(e)
  • Civil Procedure Rules, 2010Order 2 rule 15(1); Order 51 rule 1
  • Constitution of Kenya, 2010Articles 22, 23, 40, 159
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)rules 10(2) and 15(3)

Cases cited (6)

  • Kenya Agricultural and Livestock Research Organization (KALRO)
    Petition No. 29 of 2019
  • Reuben Musyoki Muli –Versus– Peter Mutua Kanyi
    (2017) eKLR
  • DT Dobie & Company (K) Limited –Versus– Joseph Mbatia Muchina and Another
    Civil Appeal No. 37 of 1988
  • Kivanga Estates Limited –Versus– National Bank of Kenya Limited
    (2017) eKLR
  • Olympic Escort International Co. Limited & 2 others –Versus– Perminder Singh Sandru & another
    (2009) eKLR
  • Millennium Chuma Limited –Versus– Platinum Steel Limited
    (2017) eKLR
Jurisdiction invoked
Articles 22, 23 and 40 of the Constitution of Kenya; Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Dawat – E - Hadiya (Kenya) Registered Trustees v Kaingu & 5 others (All Sued in a Representative Capacity also, on Behalf of other 104 Persons in Occupation of the Petitioners Parcel of Land.) (Constitutional Petition 7 of 2021) [2022] KEELC 3062 (KLR)", Case Analysis (2022). Petition dated February 12, 2020 (Notice of Motion dated November 1, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3062/eng@2022-05-18

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