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ELCDismissedEnvironment & Land Case 106 of 2019· [2022] KEELC 13551 (KLR)

Salimu & another v Saningu & 5 others

Environment and Land Court
13 October 2022
MGM.N. Gicheru
802 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling by M.N. Gicheru, J of the Environment and Land Court at Kajiado determines a Notice of Motion dated April 12, 2021 by the 1st and 3rd defendants, Josephat Kinaiya Saningu and John Lemaron Pakeni, seeking the striking out or dismissal of the suit against the 1st, 3rd and 4th defendants under Order 1 Rules 9 and 10 of the Civil Procedure Rules and sections 20 and 3A of the Civil Procedure Act. The applicants argued that no cause of action lay against the 1st defendant, that the 3rd defendant carried out due diligence and lawfully purchased L.R. Ngong/Ngong/44376 from the 2nd defendant for Kshs. 4.5 million while Hannah Wairima Salimu was alive, and that the 4th defendant lawfully bought L.R. Ngong/Ngong/44377; they branded the suit scandalous, frivolous and vexatious. The plaintiffs opposed, contending the suit could not be decided summarily without trial: the 3rd defendant allegedly purchased while a caution was in place, and the 5th defendant effected the transfer despite the caution; the 4th defendant purchased land registered in the name of a deceased person. The court framed two issues: whether the suit establishes a cause of action, and costs. Holding that the suit discloses a reasonable cause of action, that contested issues such as the existence of a caution cannot be determined on affidavits but require viva voce evidence open to cross-examination, and that striking out is a draconian remedy to be used sparingly consistent with Article 50(1), the court dismissed the application with costs in the cause.

Key legal issues

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01

Whether the suit discloses a reasonable cause of action against the 1st, 3rd and 4th defendants

Holding

The suit discloses a reasonable cause of action; the application to strike out fails

Reasoning

The court found that whether a caution was in place when the defendants bought the land is contested. Such issues of fact cannot be resolved on affidavit evidence but require viva voce evidence subject to cross-examination. The right to a fair hearing under Article 50(1) requires parties be heard before a final decision.

02

Costs of the interlocutory application

Holding

Costs should await the final outcome of the dispute

Reasoning

The court held it would not be fair to apportion costs at an interlocutory stage before the substantive dispute is determined, and accordingly ordered costs in the cause.

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Legal principles established

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  • Contested factual issues such as the existence of a caution at the time of purchase cannot be determined on affidavits but must be tried by viva voce evidence
  • Striking out of pleadings is a draconian remedy to be used sparingly and only in very clear cases

Court orders

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  1. 1.The application dated April 12, 2021 is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rules 9 and 10
  • Civil Procedure Actsection 20
  • Civil Procedure Actsection 3A
  • Constitution of KenyaArticle 50(1)
Jurisdiction invoked
Sections 20 and 3A of the Civil Procedure Act and Order 1 Rules 9 and 10 of the Civil Procedure Rules (interlocutory application in original suit)

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, "Salimu & another v Saningu & 5 others", Case Analysis (2022). Environment & Land Case 106 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13551/eng@2022-10-13

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