Muthama v Wambua & 6 others (Environment & Land Case 2 of 2011) [2022] KEELC 3436 (KLR)
The bottom line
#The Environment and Land Court in Machakos ruled that a landowner cannot shortcut a trial where the other side raises genuine disputes, so the land case will proceed to full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the defence and counterclaim should be struck out and summary judgment entered
Application dismissed; the defence raises bona fide triable issues
The court held that striking out pleadings is a draconian jurisdiction to be exercised sparingly and only in plain cases. The defence alleged the plaintiff's documents were fraudulently obtained, disputed the independent existence of parcel Matungulu/Katine/271, claimed long occupation and adverse possession, and asserted the 5th to 7th defendants were innocent purchasers. Resolving these contested issues requires full trial with opportunity to test the evidence, including the plaintiff's expert reports.
Whether evidence can be considered on an application to strike out for failure to disclose a reasonable cause of action or defence
No; under Order 2 Rule 15(1)(a) the court considers only the pleadings
The court reasoned that under Order 2 rule 15(1)(a) no evidence is admissible; it must be plain from the pleadings alone that the pleading discloses no reasonable cause of action or defence. A party who must rely on extensive evidence to demonstrate that a pleading is unsustainable has not met the threshold under that rule.
Legal principles established
#- Where a defence raises even one bona fide triable issue, it ought not to be struck out; a triable issue need not be one the defendant would ultimately succeed on, only bona fide
- Striking out a pleading is draconian and offends the right to a fair hearing under Article 50(1); it should be exercised only in exceptional circumstances
Court orders
#- 1.The application dated October 6, 2021 is dismissed with costs
- 2.Parties granted leave of 30 days of the ruling to file and serve consolidated paginated trial bundles containing pleadings, witness statements, documents and all material to be relied on at trial
- 3.A hearing date to be fixed within 14 days of the ruling
- Jurisdiction invoked
- Article 162 of the Constitution; section 13 of the Environment and Land Court Act; section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthama v Wambua & 6 others (Environment & Land Case 2 of 2011) [2022] KEELC 3436 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3436/eng@2022-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.