Musiara Limited v Narok County Govenrment & 8 others; National Land Commission (Interested Party)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the petition should be struck out for failing to disclose a cause of action against the 4th, 5th, 7th and 8th respondents
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.
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.
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
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.
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.
Legal principles established
#- 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
#- 1.The court declines to grant the orders sought in the applications dated 16th January 2023 and 24th February 2023.
- 2.Each party to bear its own costs.
- 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.The petitioner will have 7 days therefrom to respond if it so wishes.
- 5.Mention on 17th July 2023 to confirm compliance of these directions and to take a hearing date.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.