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ELCDismissedNot stated in extract· [2022] KEELC 3604 (KLR)

Kenya Railways Corporation v Combined Warehouse Limited & 5 others (Environment & Land Case 188 of 2017) [2022] KEELC 3604 (KLR)

Environment and Land Court of Kenya
17 May 2022
NMN.A. Matheka
1,219 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Mombasa refused to remove the county from a land rates dispute, ruling the claims deserved a full trial.

What this practically means

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Executive summary

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The 6th defendant, successor of the former Municipal Council of Mombasa, brought a notice of motion dated October 7, 2021 under sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 2 rule 15(1)(a) and Order 51 rule 1 of the Civil Procedure Rules 2010, seeking to strike out the plaintiff's claim against it. It argued that the plaint disclosed no substantive or reasonable cause of action against it, that the claim was a sham and an abuse of process because it purported to injunct the performance of a legal duty (payment of rates), and that the suit offended the overriding objective. The plaintiff, who by a plaint dated May 30, 2017 claimed to be the bona fide owner of an unsurveyed parcel at Changamwe, Mombasa allegedly fraudulently surveyed and registered in the 1st defendant's name and transferred to the 2nd defendant, opposed the application, contending that the 6th defendant was a necessary and proper party because it had approved the tenant's construction and was irregularly collecting rates from the 1st and 2nd defendants. The court applied the settled principles that striking out is a draconian, sparingly exercised remedy, that triable issues warrant a full trial, and that no suit should be summarily dismissed unless hopeless and incurable by amendment. Noting the 6th defendant's defence claiming Kshs 7,451,665/- in rates arrears and its mandate to auction for recovery, the court found its presence necessary for complete adjudication and dismissed the application with costs in the cause.

Key legal issues

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Whether the claim against the 6th defendant should be struck out for failing to disclose a cause of action and constituting an abuse of process

Holding

The application was dismissed; the plaint raised triable issues and the 6th defendant was a necessary party given its rate-collection mandate and construction approvals

Reasoning

The court held that striking out is discretionary and draconian, to be exercised sparingly. The 6th defendant had denied the allegations and asserted outstanding rates of Kshs 7,451,665/- with a legal mandate to auction for recovery. The dispute over the lawfulness of the survey and transfer required oral evidence, so there was a semblance of a cause of action, and the 6th defendant's presence enabled the court to effectually and completely adjudicate all questions.

p. 3

Legal principles established

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  • Striking out a pleading is a draconian act resorted to only in plain cases; where oral evidence is necessary the matter is not plain
  • A claim however implausible must be allowed to proceed to trial unless the claimant cannot demonstrate shortly and conclusively that it is bound to fail
  • No suit ought to be summarily dismissed unless it is so hopeless that it plainly discloses no reasonable cause of action and is incurable by amendment

Court orders

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  1. 1.The Notice of Motion dated October 7, 2021 seeking to strike out the plaintiff's claim against the 6th defendant is dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure Act Cap 21 Laws of Kenyasections 1A, 1B, 3A & 63(e)
  • Civil Procedure Rules 2010Order 2 rule 15(1)(a) & Order 51 rule 1

Cases cited (5)

  • Postal Corporation of Kenya v IT Inamdar & 2 Others
    (2004) 1 KLR 359
  • Olympic Escort International Co Ltd & 2 Others v Parminder Singh Sandhu & Another
    (2009) eKLR
  • The Co-Operative Merchant Bank Ltd v George Fredrick Wekesa
    Civil Appeal No 54 of 1999
  • Yaya Towers Limited v Trade Bank Limited (in Liquidation)
    Civil Appeal No 35 of 2000
  • DT Dobie & Company Kenya Limited v Joseph Mbaria Muchina & Another
    (1980) eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act Cap 21; Order 2 rule 15(1)(a) & Order 51 rule 1 of the Civil Procedure Rules 2010

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, "Kenya Railways Corporation v Combined Warehouse Limited & 5 others (Environment & Land Case 188 of 2017) [2022] KEELC 3604 (KLR)", Case Analysis (2022). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3604/eng@2022-05-17

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