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ELCDismissedEnvironment & Land Case 331 of 2012· [2022] KEELC 15168 (KLR)

Rosa v Crutzen (Sued as the legal representative of the Estate of the Late Ruth Wanjiru Mwithia)

Environment and Land Court
7 December 2022
SOS. O. Okong'o
4,241 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to end a property dispute early, ruling that survivorship claims require a full trial when co-ownership is disputed.

What this practically means

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Executive summary

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Federico Rosa sued the late Ruth Wanjiru Mwithia in 2008 seeking vacant possession of Pent House Number D7, LR No 330/98, severance of the joint tenancy between them, and vesting of the property in him as sole proprietor. He claimed he bought the property at Kshs 15,000,000 to be a matrimonial home with the deceased, who was registered as joint tenant despite the purchase price being met solely by him. The deceased denied this, asserting she paid Kshs 13,500,000 and that registration as joint tenants was a mistake by the advocate, the parties having intended tenancy in common. After her death in 2013, her husband Marc M Crutzen was substituted as legal representative of the estate. By notice of motion dated November 26, 2020, the plaintiff sought striking out of the amended defence on the basis of survivorship (jus accrescendi), contending the deceased's death vested sole ownership in him. The defendant opposed, arguing the plaintiff had pleaded fraud in procuring the joint registration and could not simultaneously rely on it, and that striking out was premature given triable issues. Okong'o J framed a single issue: whether the amended defence should be struck out on the principle of survivorship. Applying DT Dobie and JP Machira, the court held striking out is draconian and reserved for the clearest of cases. Whether the parties were joint tenants or tenants in common was disputed and could not be determined on affidavit evidence; survivorship arises only after a plenary hearing so determines. The plaintiff's claim of survivorship was premature, and the March 28, 2017 ruling made no conclusive findings. The application was dismissed with costs to the defendant.

Key legal issues

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01

Whether the amended defence should be struck out on the principle of survivorship

Holding

The application was dismissed; the defence raised a triable issue as to whether the parties were joint tenants or tenants in common, which cannot be resolved on affidavit evidence

Reasoning

The deceased's amended defence alleged the joint tenancy registration was a mistake by the advocate and that the parties intended distinct equal shares. Whether the parties agreed to be joint tenants or tenants in common is disputed and requires a plenary hearing. Survivorship only arises after such determination, so the plaintiff's invocation of jus accrescendi was premature. The March 28, 2017 ruling made no conclusive findings.

p. 7
02

The proper exercise of the power to strike out pleadings

Holding

Striking out is a draconian remedy to be exercised with great circumspection and only in the clearest of cases

Reasoning

Relying on DT Dobie and JP Machira, the court reiterated that a suit should not be summarily dismissed unless it is hopeless, plainly and obviously discloses no reasonable defence, and is beyond redemption by amendment. The defence here was not shown to be unreasonable.

p. 6

Legal principles established

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  • The court's power to strike out pleadings should be exercised with great circumspection and only in the clearest of cases
  • Survivorship (jus accrescendi) can only arise after a plenary hearing determines that the parties were joint tenants; it cannot be determined on affidavit evidence where the nature of co-ownership is disputed

Court orders

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  1. 1.The plaintiff's notice of motion application dated November 26, 2020 is dismissed
  2. 2.Costs of the application to the defendant

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3A
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 2 Rule 6
  • Civil Procedure Rules 2010Order 2 rule 15(1)

Cases cited (6)

  • Boniface Awuor & Another v Victor Otieno Nyadimo & 2 Others
    [2017] eKLR

    Survivorship removes jointly owned property from the operation of the law of succession upon death of a joint tenant

  • Peter Mburu Echaria v Priscilla Njeri Echaria
    [2007] eKLR

    Relied on by plaintiff on the doctrine of survivorship

  • Chumo Arap Songok v David Kibiego Rotich
    [2006] eKLR

    Plaintiff barred from relying on survivorship where the joint tenancy registration is in issue and determinable only at full trial

  • DT Dobie & Co (Kenya) Limited v Joseph Mbaria Muchina & Another
    [1980] eKLR

    Power to strike out pleadings to be exercised sparingly, only in plain and obvious cases

  • Ramji Megji Gudka Ltd v Alfred Morfat Omundi Michira & 2 Others
    [2005] eKLR

    Striking out is a draconian remedy to be granted sparingly

  • JP Machira v Wangethi Mwangi
    Court of Appeal, Civil Appeal No 179 of 1997

    Striking-out powers are drastic, to be exercised with great caution and only in the clearest of cases

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit; application brought under sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules

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, "Rosa v Crutzen (Sued as the legal representative of the Estate of the Late Ruth Wanjiru Mwithia)", Case Analysis (2022). Environment & Land Case 331 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15168/eng@2022-12-07

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