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ELCDismissedEnvironment & Land Petition E008 of 2022· [2023] KEELC 18077 (KLR)

Musiara Limited v Narok County Govenrment & 8 others; National Land Commission (Interested Party)

Environment and Land Court
13 June 2023
5,005 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 strike out Musiara Limited's land petition, confirming courts rarely dismiss claims that can still be defended.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Narok (C.G. Mbogo, J) determined two interlocutory applications in a constitutional petition by Musiara Limited against the Narok County Government, the Attorney General and seven private companies operating in the Mara area, with the National Land Commission as interested party. The 4th, 5th, 7th and 8th respondents sought striking out of the petition for failing to disclose causes of action against them, alternatively particulars and security for costs; the petitioner sought an order compelling the 3rd to 9th respondents to produce their instruments of title and survey or sketch plans under Article 35 and rule 21(2) of the Mutunga Rules. On the striking-out application, the court applied D.T. Dobie and Crescent Construction, confined itself to the pleadings, and found that paragraphs 39 and 40 of the petition plead specific claims of unlawful trespass and possession arising from the 1st respondent's decisions, with the enabling statutory provisions violated pleaded, so the respondents could defend themselves. Prayer 3 was presumed abandoned as no submissions were made. On the production application, the court found no averment that the petitioner had requested the documents and been denied, and held the application premature since the respondents had not yet filed responses. Both applications were dismissed, each party ordered to bear its own costs, and directions issued for the respondents to file responses within 21 days, the petitioner to respond within 7 days thereafter, with mention on 17th July 2023.

Key legal issues

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01

Whether the petition should be struck out for failing to disclose a cause of action against the 4th, 5th, 7th and 8th respondents

Holding

The application was declined; the petition discloses specific claims of unlawful trespass and possession arising from the 1st respondent's decisions, and pleads the enabling statutory provisions violated.

Reasoning

The court applied D.T. Dobie and Crescent Construction on the cautious exercise of the striking-out power. Confined to the pleadings, the court found that paragraphs 39 and 40 of the petition plead specific actions of unlawful trespass and possession by the 2nd to 9th respondents arising from the 1st respondent's decisions, and that the enabling statutory provisions violated are pleaded. The respondents can therefore know and meet the case against them.

p. 10
02

Whether the petitioner's application dated 24th February 2023 for production of title documents under Article 35 and rule 21(2) of the Mutunga Rules was merited

Holding

The application was dismissed as premature; the petitioner made no averment that it requested the documents and was denied, and the respondents had not yet filed their responses.

Reasoning

The court noted the absence of any averment that the petitioner sought the instruments of title and survey plans and was refused. Without such a request and denial, there was no basis for the court's intervention. Further, since the respondents had not yet filed responses to the petition, ordering production at that stage was premature.

p. 10

Legal principles established

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  • A court should act cautiously before striking out a pleading and should not summarily dismiss a suit that shows even a semblance of a cause of action curable by amendment.
  • The power to strike out a pleading is discretionary and must be exercised with the greatest care and caution.

Court orders

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  1. 1.The court declines to grant the orders sought in the applications dated 16th January 2023 and 24th February 2023.
  2. 2.Each party to bear its own costs.
  3. 3.The respondents are directed to file and serve their responses to the petition together with any documents they intend to rely on within 21 days from the date of the ruling.
  4. 4.The petitioner will have 7 days therefrom to respond if it so wishes.
  5. 5.Mention on 17th July 2023 to confirm compliance of these directions and to take a hearing date.

Authorities

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Legislation

  • Constitution of KenyaArticles 27, 35, 40, 48, 50, 50(2)(i), 50(2)(j), 64
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Legal Notice No. 117 of 2013)Rules 10, 11, 15, 21(2)
  • Land Registration ActSections 18 and 19
  • Evidence ActSection 112

Cases cited (12)

  • Mumo Matemu versus Trusted Society of Human Rights Alliance & Others
    [2013] eKLR

    Procedure is a handmaiden of just determination of cases.

  • M.R.S Kantaria versus S. R. Kantaria
    Civil Appeal No. 227 of 2005

    Relied on by respondents for particulars; petitioner argued it predates the Mutunga Rules.

  • Nandwa versus Provincial Insurance Company of East Africa
    (1995-1998) EACA 288

    Relied on by applicants in abandoning prayer 2 of their motion.

  • Bethwell Allan Omondi Okal versus Telkom (K) Limited (Founder) & 9 Others
    [2017] eKLR

    Non-compliance with mandatory provisions on petitions to enforce the Bill of Rights.

  • Anarita Karimi Njeru versus Republic
    [1979] eKLR; (1976-1980) 1 KLR 1272

    Requirement to plead with particularity the constitutional provisions violated and the manner of violation.

  • Dodhia versus National & Grindlays Bank
    (1970) EA 195

    Cited by applicants in support of striking out the petition.

  • James Kimwetich Kulei versus County Government of Uasin Gishu & 2 Others
    [2021] eKLR

    Cited by applicants in support of striking out the petition.

  • Cefa Enterprises Limited versus Benedict Kyalo Kimuyu & 3 Others
    [2020] eKLR

    Abuse of court process by a party failing to supply particulars of its claim.

  • Kenya Pipeline Company Limited versus Duncan Nderitu Ndegwa & Another
    Civil Appeal No. 235 of 2020

    Costs follow the event and are awarded to the successful party.

  • Auto Garage & Others versus Motokov
    [1971] E.A 514

    Definition and elements of a cause of action.

  • D.T Dobie & Company (Kenya) Ltd versus Muchina
    1982 K.L.R 1

    Caution in striking out pleadings; no summary dismissal where a semblance of cause of action exists.

  • Crescent Construction Co. Ltd versus Delphis Bank Ltd
    2007 eKLR

    Striking-out power is discretionary and must be exercised with greatest care and caution.

Jurisdiction invoked
Article 23(1) of the Constitution as read with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga 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, "Musiara Limited v Narok County Govenrment & 8 others; National Land Commission (Interested Party)", Case Analysis (2023). Environment & Land Petition E008 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18077/eng@2023-06-13

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