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ELCDismissedEnvironment & Land Case 10 of 2023· [2023] KEELC 19049 (KLR)

Kishare v Muriithi

Environment and Land Court of Kenya
10 July 2023
1,356 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner's attempt to strike out a trespass defence failed because the court found the defence raised real questions needing a full trial.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Nakuru/Rare/Gichobo/494, sued the defendant for trespass, seeking a declaration of ownership, mesne profits, general damages and vacant possession. The defendant admitted the plaintiff's registration but asserted ownership by purchase from the plaintiff in 1995, claiming uninterrupted occupation, development and cultivation for some 24 years, and sought a declaration that the land belongs to him together with transfer of the title. The plaintiff then moved under Order 2 rule 15 of the Civil Procedure Rules to have the defence struck out as a sham, disclosing no reasonable defence, being time-barred, and resting on a non-existent 1995 sale agreement allegedly void for want of Land Control Board consent. Justice A O Ombwayo framed the sole issue as whether the defence was a sham. Applying DT Dobie v Muchina and related authorities, the court held the striking-out power is draconian, permissive rather than mandatory, and must be exercised with tremendous caution. The defence raised triable issues - long occupation and alleged purchase from the proprietor - and could be strengthened by amendment. The application was found unmerited and dismissed; the defendant was directed to amend his defence and file necessary documents within 14 days, with costs in the cause. The substantive trespass and ownership questions remain for trial.

Key legal issues

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01

Whether the defence is a sham fit to be struck out under Order 2 rule 15

Holding

The defence is plausible and raises triable issues; striking out would be prejudicial and the defence can be strengthened by amendment

Reasoning

Applying DT Dobie, the court holds a defence should not be summarily dismissed unless it is hopeless and incurable by amendment. The defendant's claimed purchase and 28 years' occupation raise triable issues. The striking-out power is discretionary, not mandatory, and must not be exercised where a mere semblance of a defence exists.

p. 3

Legal principles established

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  • The power to strike out pleadings is permissive, not mandatory, and must be exercised with tremendous caution where triable issues exist

Court orders

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  1. 1.The plaintiff's notice of motion dated May 23, 2023 seeking to strike out the defence is not allowed
  2. 2.The defendant to regularize his position by amending the defence and filing all necessary documents within 14 days of delivery of the ruling
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 rule 15
  • Land Control Actcap 302

Cases cited (5)

  • DT Dobie & Company Kenya Ltd v Joseph Mbaria Muchina & another
    (1980)

    A suit should not be summarily dismissed unless hopeless and incurable by amendment

  • Blue Sky Epz Limited v Natalia Polyakova & another
    (2007) eKLR

    Striking-out power is draconian; a defence must raise triable issues

  • Blue Shield Insurance Company Ltd v Joseph Mboya Oguttu
    [2009] eKLR

    Court must consider all facts but not embark on merits on a strike-out application

  • Madison Insurance Company Limited v Augustine Kamanda Gitau
    [2020] eKLR

    A mere semblance of a cause of action curable by amendment should go forward

  • Prafulla Enterprises Ltd v Norlake Investments Ltd
    Kisumu High Court Civil Case No. 145 of 1997; LLR 7412 (HCK)

    Striking out must be done with tremendous caution; a litigant should not be driven from the seat of justice unheard

Jurisdiction invoked
Order 2 rule 15 of the Civil Procedure Rules; original civil jurisdiction of the Environment and Land Court

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, "Kishare v Muriithi", Case Analysis (2023). Environment & Land Case 10 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19049/eng@2023-07-10

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