Shah & 5 others v Lucy Njeri Ngunyangi & Maxwell Munene (Both Sued as Legal Representatives of Ben Ngunyangi Iragu) & 2 others
The bottom line
#A Kenyan land court refused to strike out a fraud claim, ruling that weak paperwork can be fixed but genuine disputes must go to trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Amended Plaint dated September 30, 2021 ought to be struck out as frivolous, meant to delay fair trial, or an abuse of the court process
Key legal issues
#Whether the amended plaint should be struck out under Order 2 Rule 15
The application to strike out failed because the plaint raises triable issues of fraud and title; the defects complained of are rectifiable
The court held the amended plaint not frivolous as it raises allegations of fraud and the defendants' connection with the suit property, which are triable issues. Service objections were moot since counsel had appeared for the same parties. The missing verifying affidavit and the 'male adult' description were rectifiable defects, not grounds for striking out. Striking out would also leave the consolidated litigation in quandary.
Whether the attorneys could prosecute the suit under powers of attorney
Premature; admissibility of evidence and eligibility to testify are matters for the hearing stage, not interlocutory striking out
The court found the issue of the plaintiffs' use of attorneys required taking of evidence, which is not done in interlocutory proceedings. While sufficient to bar the attorneys' testimony, it would not justify striking out a pleading with triable issues.
Joinder of the Attorney General where land registrars are sued
The plaintiff should join the Attorney General as 3rd defendant under Section 12(1) of the Government Proceedings Act
Since the Land Registrar and Chief Land Registrar are government officers paid from the consolidated fund, the court directed joinder of the Attorney General under Section 12(1) of the Government Proceedings Act, while noting misjoinder or non-joinder cannot defeat a suit.
Legal principles established
#- Striking out a pleading is a draconian act resorted to only in plain cases
- A party is entitled to pursue a claim however implausible unless the claim is bound to fail or is an abuse of process; the jurisdiction is sparingly exercised
- No suit shall be defeated by misjoinder or non-joinder of parties
Court orders
#- 1.The amended plaint dated September 30, 2022 shall be further amended to address the applicant's concerns regarding the proper description of the defendants at paragraph 2
- 2.The plaintiff shall join the Attorney General as the 3rd defendant under Section 12(1) of the Government Proceedings Act and serve him with summons at his Nakuru office
- 3.The further amended plaint shall be accompanied by a verifying affidavit and filed and served within 5 days of the order
- 4.The plaintiffs in Nakuru ELC 115 of 2019 shall ensure compliance within 14 days of the order and no documents shall be filed outside that period without leave of court
- 5.The defendants in Nakuru ELC 115 of 2019 shall ensure compliance within 28 days of the order and no documents shall be filed outside that period without leave of court
- 6.The timelines in (d) and (e) shall run concurrently
- 7.Mention of the suit on October 27, 2022 to deal with whether Nakuru ELC 519 of 2013 was or should be consolidated with Nakuru ELC 115 of 2019 and Nakuru ELC 317 of 2011, with all counsel to appear
- 8.Each party shall bear their own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 159 of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act, 2010; Order 2 Rule 15 of the Civil Procedure Rules
- Consolidated with
- Civil Case 317 of 2011
Relief refused
#Striking out of the Amended Plaint dated September 30, 2021
The plaint raises triable issues of fraud and connection with the suit property; defects identified are rectifiable
Costs
Each party shall bear their own costs of the application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In view of the foregoing, I find that the Amended plaint dated September 30, 2022 ought not be struck out.
Striking out a pleading is a draconian act, which may only be resorted to, in plain cases
A plaintiff (defendant) is entitled to pursue a claim in our courts however implausible and however improbable his chances of success.
Each party shall bear their own costs of the application.
The plaintiff shall join the Attorney General as the 3rd defendant under Section 12(1) of the Government Proceedings Act and shall serve him with summons at his Nakuru office
Issues in the judgment
#Amended plaint date given inconsistently as 2021 and 2022
Conflicting attribution of the setting-aside ruling to Emukule J and H Omondi J
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shah & 5 others v Lucy Njeri Ngunyangi & Maxwell Munene (Both Sued as Legal Representatives of Ben Ngunyangi Iragu) & 2 others", Case Analysis (2022). Environment & Land Case 115 of 2019 & Civil Case 317 of 2011 (Consolidated), formerly Nakuru HCCC No. 122 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13646/eng@2022-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.