Masila & 2 others v Krotonite Enterprises Limited
The bottom line
#Kenya's Environment and Land Court refused to throw out an adverse possession land claim, ruling it must be decided at a full trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the originating summons discloses grounds for striking out under Order 2 Rule 15
The application did not meet the threshold; the pleadings raise weighty factual and legal issues requiring full trial
The court reviewed the settled principles from Co-operative Merchant Bank v Wekesa, Yaya Towers, D.T Dobie and other authorities that striking out is draconian and reserved for plain cases. It found numerous factual and legal issues in dispute - the plaintiffs' long possession since 1993, the discrepancy between Krotonite and Kryptonite Enterprises, the 2013 grant, and whether time ran against government land under section 41 of the Limitation of Actions Act - none of which could be resolved summarily without evidence.
Costs of the application
Although the plaintiffs would ordinarily be entitled to costs, costs were made costs in the cause given the matter proceeds to full trial
The court applied section 27(1) of the Civil Procedure Act that costs follow the event, citing Rosemary Wambui Munene and Supermarine Handling Services. However, balancing the scales of justice and considering the matter was still to proceed to full trial, it found it just and reasonable that costs of the application be in the cause rather than awarded outright.
Legal principles established
#- Striking out pleadings is a draconian remedy to be exercised sparingly and only in plain cases; a suit with a semblance of a cause of action should proceed to trial
- Where factual and legal disputes exist, they must be resolved at full trial rather than at interlocutory stage
Court orders
#- 1.The notice of motion application dated February 9, 2018 be and is hereby dismissed for lack of merit
- 2.The matter to be fixed and heard within the next one hundred and eighty (180) days from delivery of the ruling, with a mention on May 9, 2023 for directions under Order 37 Rules 16-19 and pre-trial conference under Order 11 of the Civil Procedure Rules, 2010
- 3.Costs of the application to be in the cause
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit land; interlocutory application under Order 2 Rule 15(1)(d) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masila & 2 others v Krotonite Enterprises Limited", Case Analysis (2023). Environment and Land Case Civil Suit 021 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17358/eng@2023-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.