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ELCDismissedNot stated in the judgment· [2022] KEELC 3069 (KLR)

Kikuvi v Musilu (Environment & Land Case E006 of 2021) [2022] KEELC 3069 (KLR)

Environment and Land Court
25 May 2022
ANA. Nyukuri
1,244 words in judgment
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The bottom line

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A Machakos court refused to strike out a defence raising a child's right to shelter over jointly owned land, holding such issues must be decided at trial.

What this practically means

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Executive summary

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The plaintiff, joint owner with the defendant of parcel LR No 12715/3772 (I.R No 156593) in equal shares, applied by notice of motion dated August 2, 2021 for the striking out of the defendant's defence and entry of judgment. The plaintiff argued that the defence assertion that the property is held in trust for the parties' six-year-old child was a sham, and relied on provisions of the Land Registration Act (sections 25, 91(6) and 96(1)) governing the rights of joint owners, submitting further that the court lacked jurisdiction over the child's claim. The defendant, through grounds of opposition and a replying affidavit, maintained that the defence raised triable issues and that selling the property would violate the child's right to shelter under Article 53 of the Constitution, relying on authorities urging restraint in striking out pleadings and on children's-rights cases. The court framed a single issue: whether the applicant met the threshold for striking out a defence. Applying Order 2 rule 15 of the Civil Procedure Rules and the caution laid down in DT Dobie v Joseph Mbaria Muchina, the court held that the right to be heard is sacrosanct, the power to strike out must be exercised sparingly, and the defence raised a triable issue - whether a child of joint owners can hold an enforceable interest in property owned by their parents - which could only be determined at trial. The application dated August 2, 2021 was dismissed with no order as to costs. Judgment was delivered virtually at Machakos on May 25, 2022 by A. Nyukuri, Judge.

Key legal issues

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01

Whether the defence raising a child's right to shelter over jointly owned property is a sham fit to be struck out

Holding

No - the defence raises a triable issue that must go to trial

Reasoning

Order 2 rule 15 of the Civil Procedure Rules confers a discretion to strike out frivolous or vexatious pleadings, but the right to be heard is sacrosanct and the power must be exercised sparingly. Following DT Dobie, the court should not consider the merits at interlocutory stage. The defence raised the question whether children of joint owners hold enforceable interests in their parents' property, an issue requiring trial with full evidence.

p. 3

Legal principles established

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  • The power to strike out a pleading ought to be exercised cautiously and sparingly since the right to be heard is sacrosanct

Court orders

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  1. 1.The application dated August 2, 2021 seeking to strike out the defence is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Land Registration ActSection 91(6)
  • Land Registration ActSection 25
  • Land Registration ActSection 96(1)
  • Constitution of KenyaArticle 53
  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13
  • Civil Procedure RulesOrder 2 rule 15

Cases cited (11)

  • NSG v SCG
    [2019] eKLR
  • NLS v BRP
    [2016] eKLR
  • Owners of the Motor Vessel Lillian S v Caltex Kenya
    [1989] eKLR 1
  • JAM v BOS
    [2019] eKLR
  • David Ondimu Kombo v Belcom Agencies Limited
    [2021] eKLR
  • Madison Insurance Company Limited v Augustine Kamanda Gitau
    [2020] eKLR
  • Mercy Nduta Mwangi t/a Mwangi Kengára & Co Advocates v Invesco Assurance Company Limited
    [2020] eKLR
  • Saudi Arabian Airlines Corporation v Sean Express Services Ltd
    [2014] eKLR
  • MA v ROO
    [2013] eKLR
  • SAJ v AOG & another
    [2019] eKLR
  • DT Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another
    [1982] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act (invoked by the parties in submissions)

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, "Kikuvi v Musilu (Environment & Land Case E006 of 2021) [2022] KEELC 3069 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3069/eng@2022-05-25

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