Ole Sordo & another v County Government of Narok & 2 others
The bottom line
#Kenya's Environment and Land Court refused to throw out a landowner's suit against Narok County, ruling the attempt repeated an argument already decided in 2019.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Motion dated 24th April 2023 seeking to strike out the plaint for disclosing no reasonable cause of action has merit
- 2.Whether the application is res judicata the ruling delivered by Kullow, J on 24th July 2019
Key legal issues
#Whether the application to strike out the plaint was res judicata
The application was res judicata because the same issue - whether the plaint discloses a reasonable cause of action - was heard and determined by Kullow, J on 24th July 2019 between the same parties under the same title
The court reproduced the 2019 ruling and found that although raised by preliminary objection, the issue of whether the plaint disclosed a cause of action was dealt with substantively, as the court applied its mind to whether the facts pleaded disclosed any claim. The parties, title and subject matter were the same, satisfying Section 7 of the Civil Procedure Act conjunctively.
Whether the plaint discloses no reasonable cause of action and should be struck out
The plaint was not struck out; striking out is discretionary and draconian, and a suit with a mere semblance of a cause of action should proceed to trial
Relying on D.T Dobie v Muchina and Blue Shield Insurance v Oguttu, the court held that the power to strike out must be used sparingly, only where the pleading is clearly untenable, and without embarking on the merits. The plaintiffs' apprehension of demolition and prior demolitions raised triable issues requiring evidence at trial.
Whether the doctrine of ripeness could be determined on an Order 2 Rule 15 application
Ripeness, being factual in nature, could not be determined preliminarily without evidence; it was a matter for trial
The respondents submitted that ripeness deals with factual matters in contestation which must be subjected to the adversarial tools of trial, and that no evidence is admissible on an Order 2 Rule 15(1)(a) application. The court, having found the application res judicata, dismissed it without determining ripeness substantively.
Legal principles established
#- No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is incurable by amendment
- All elements of res judicata under Section 7 of the Civil Procedure Act must be satisfied conjunctively
Court orders
#- 1.The Notice of Motion application dated 24th April 2023 is dismissed with costs to the plaintiffs/respondents
- 2.Mention on 26th July 2023 for further directions
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit; application under Order 2 Rule 15(1)(a) of the Civil Procedure Rules and Sections 1A, 1B and 3B of the Civil Procedure Act
Relief refused
#Striking out of the plaint and dismissal of the suit under Order 2 Rule 15(1)(a)
The application was res judicata the 24th July 2019 ruling and the plaint was not shown to be hopeless or incurable by amendment
Costs
Costs of the application to the plaintiffs/respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I find the instant application a waste of court's precious time as this is an issue that has already been dealt with. As such, the Notice of Motion application dated 24th April 2023 is hereby dismissed with costs to the plaintiffs/respondents. Mention on 26th July 2023 for further directions. It is so ordered.
no suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment.
A plain reading of the ruling shows that the issue of whether the plaint discloses a reasonable cause of action was dealt with substantively as the court applied its mind to whether the facts pleaded disclose any claim
striking out of a pleading must be done with tremendous caution because a litigant should never be driven from the seat of justice without being heard.
Issues in the judgment
#Court cites 'Order 2 rule 15 of the Civil Procedure Code' though the provision is from the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ole Sordo & another v County Government of Narok & 2 others", Case Analysis (2023). Environment & Land Case 2 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18761/eng@2023-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.