Denooyer & another v Ancilotto
The bottom line
#Kenya's Environment and Land Court refused to throw out a land claim by foreign investors, confirming that weak-looking cases still deserve a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit discloses no reasonable cause of action warranting striking out under Order 2 Rule 15(1)(a)
The suit is not hopeless; the claim for possessory rights based on legitimate expectation raises a reasonable cause of action
The court applied the settled test that a suit is struck out only where it is plainly and obviously hopeless and beyond redemption. The uncontested facts - that the Plaintiffs occupied and developed a portion of the Defendant's land with her consent, investing substantially - support the prayers sought. Determination of their claimed rights requires trial, not summary dismissal.
Admissibility of a replying affidavit in response to a striking-out application under Order 2 Rule 15(2)
Order 2 Rule 15(2) governs the application itself and is silent on the respondent's response; Order 51 Rule 14 permits a respondent to file a replying affidavit
The court held that the bar on evidence under Order 2 Rule 15(2) applies to the application, not the response. Order 51 Rule 14 allows a respondent wishing to oppose an application to file grounds of opposition or a replying affidavit, failing which the matter may proceed ex parte. The replying affidavit was therefore properly on record.
Whether non-citizens can claim an interest in agricultural land
The Land Control Act provisions must be read with Article 65 of the Constitution, which permits non-citizens to hold land on leasehold tenure of up to 99 years
The Defendant argued the Plaintiffs, as non-citizens, could not lawfully acquire agricultural land absent a presidential exemption under Section 24 of the Land Control Act. The court held Sections 9 and 24 must be construed in light of Article 65, which allows non-citizens leasehold tenure not exceeding 99 years, meaning the claim was not necessarily barred.
Legal principles established
#- On an application to strike out a pleading for disclosing no reasonable cause of action, the court only scrutinises the pleading and its particulars, not the evidence or prospects of success
- A claim asserting possessory rights over land developed with the owner's consent, based on alleged legitimate expectation, discloses a reasonable cause of action fit for trial
- Sections 9 and 24 of the Land Control Act must be construed in the context of Article 65 of the Constitution, which allows non-citizens to hold land on leasehold tenure not exceeding 99 years
Court orders
#- 1.The court declines to strike out the suit
- 2.Parties directed to comply with Order 11 so that the case can be set down for hearing expeditiously
- 3.Each party to bear its own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (suit concerning land); application under Order 2 Rule 15 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Denooyer & another v Ancilotto", Case Analysis (2023). Environment & Land Case 11 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19317/eng@2023-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.