Ayuka v Adongo & another
The bottom line
#A landowner's lawsuit over disputed boundaries survived a bid to throw it out; striking out pleadings in Kenya is reserved for the clearest cases only.
What this practically means
#Executive summary
#Key legal issues
#Whether grounds under Order 2 Rule 15(1)(a) may be combined with (b), (c) and (d)
Sub-rule (a) must be a stand-alone prayer; combining it with the other sub-heads is wrong and renders the application an abuse of process
The sub-heads are disjunctive. Sub-rule (a) applications are not supported by affidavit evidence under Rule 15(2), while the other sub-heads require affidavit evidence. Combining them places the Court in a dilemma and amounts to a fishing expedition, itself an abuse of the process of the Court.
Whether the Further Affidavit filed without leave was properly on record
It was filed without leave under Order 51 Rule 14(3) and is illegally on record, a nullity, and not considered
Unlike pleadings, a party filing an application has no automatic leave to file further affidavits. A respondent's replying affidavit may only be answered by a further affidavit with leave of the Court. The applicant filed without leave, so the affidavit is a nullity.
Whether the Plaint disclosed a reasonable cause of action
Yes - the Plaint raises a triable issue whether the defendants interfere with the plaintiff's quiet use and enjoyment of parcel 206
The Plaint pleads ownership of parcel 206, disturbance of boundaries, a survey confirming interference, and continued occupation by the defendants. This shows an issue to be tried; the pleadings disclose a cause of action and the first limb of the application fails.
Whether the suit was frivolous, vexatious, prejudicial or an abuse of process
No - the disputes over conflicting survey reports require evidence at trial and cannot ground striking out
The conflicting survey reports raise questions requiring clarification from the parties and the surveyor through evidence tested at trial. A suit cannot be struck out on a disputed survey report whose maker has not been questioned. The application was itself an abuse of process.
Legal principles established
#- A prayer under Order 2 Rule 15(1)(a) for striking out for failure to disclose a reasonable cause of action must be a stand-alone prayer and cannot be combined with sub-rules (b), (c) and (d)
- A further affidavit in support of an application may only be filed with leave of the Court; without leave it is a nullity
- Striking out pleadings is reserved for the clearest of cases and must not be exercised on a minute examination of facts
Court orders
#- 1.The Notice of Motion dated November 10, 2022 is dismissed
- 2.Costs of the application to the Plaintiff
- 3.Any future application by the applicant requires prior leave of the Court
- 4.Suit to be mentioned on 03/05/2023 to fix a hearing date
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 2 Rule 15 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ayuka v Adongo & another", Case Analysis (2023). Environment & Land Case 3 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16888/eng@2023-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.