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ELCDismissedEnvironment & Land Case 87 of 2021· [2022] KEELC 14945 (KLR)

Francis v Thomas & 2 others

Environment and Land Court of Kenya
23 November 2022
NMNA Matheka
1,335 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to strike out an adverse possession land claim, ruling such claims must be decided at trial, not on paper.

What this practically means

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Executive summary

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This is a ruling by NA Matheka J of the Environment and Land Court at Mombasa on a notice of motion dated July 6, 2022 seeking, under sections 1A, 3 and 3A of the Civil Procedure Act and Order 2 rule 15 of the Civil Procedure Rules, to strike out an originating summons claiming Parcel No 2445/VI/MN and Plot No 2446/VI/MN by adverse possession against the estate of Ceri Vaughan Thomas. The striking-out applicant argued the suit fell short of the legal threshold for adverse possession because the plaintiff had admitted in his supplementary affidavit that he does not reside on or occupy the suit properties, rendering the claim stillborn, scandalous, frivolous, vexatious and an abuse of process. The plaintiff maintained he had been in possession for over 12 years, that the deceased had given him the land, and that the original title was extinguished by limitation. The court applied Order 2 rule 15 and the authorities of DT Dobie v Muchina, Geminia Insurance v Onyango and Kabogo v KCB, holding that striking out is a draconian, discretionary remedy to be exercised sparingly and only in the clearest of cases, and that a party is entitled to his day in court however implausible the claim. The application was dismissed with costs, with the question of when occupation became adverse left for trial.

Key legal issues

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01

Whether the adverse possession claim should be struck out at interlocutory stage

Holding

No - the claim, however improbable, must go to full trial

Reasoning

The court applied Order 2 rule 15 and the settled principles from DT Dobie, Geminia Insurance and Kabogo that striking out is discretionary, exercised sparingly in the clearest of cases. A party has a right to be heard unless the case is so hopeless it plainly discloses no reasonable cause of action. Whether occupation became adverse is a matter of evidence at trial.

p. 3

Legal principles established

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  • Striking out of pleadings is a draconian step, exercised only in the clearest of cases and as a last resort; courts should aim to sustain rather than terminate suits

Court orders

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  1. 1.The application dated July 6, 2022 seeking striking out of the suit is dismissed
  2. 2.Costs awarded to the applicant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3, 3A
  • Civil Procedure Rules 2010Order 2 rule 15(1)(b),(c),(d) and (3)
  • Civil Procedure Rules 2010Order 51 rule 1
  • Limitation of Actions Act

Cases cited (3)

  • James Kimani Kabogo vs Kenya Commercial Bank Limited & Another
    (2014) eKLR

    Striking out should be exercised cautiously and with restraint; reasons must be cogent and water-tight

  • Geminia Insurance Co Limited vs Kennedy Otieno Onyango
    [2005] eKLR

    Striking out pleadings is a draconian step for the clearest of cases

  • DT Dobie & Co (Kenya) Ltd vs Muchina
    [1982] KLR

    Power to strike out should be used sparingly; court should aim at sustaining rather than terminating a suit

Jurisdiction invoked
Sections 1A, 3 and 3A Civil Procedure Act; Order 2 rule 15 and Order 51 rule 1 Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Francis v Thomas & 2 others", Case Analysis (2022). Environment & Land Case 87 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14945/eng@2022-11-23

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