Kitsao & 243 others v Kilifi South East Farmers Co-operative Society Limited
The bottom line
#A Kenyan court refused to strike out a co-operative's defence in a land dispute, ruling that even one genuine triable issue means the case must go to full trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant's Replying Affidavits should be struck out under Order 2 Rule 15 for disclosing no reasonable defence or being an abuse of process
The application failed. The Plaintiffs' omnibus invocation of Order 2 Rule 15 without specifying a sub-rule was erroneous, and the Defendant's affidavits raised bona fide triable issues (occupation as at 1st January 2011, members of the Society in occupation of portions) that must be tested at trial.
The court reviewed the settled principles from DT Dobie, Blue Shield and related authorities: striking out is drastic, exercised sparingly, without embarking on the merits. The Defendant's surveyor's report and averments raised triable issues on occupation and limitation. The court also found the res judicata and sub judice objections inapplicable to these facts.
Procedural propriety of an omnibus application under Order 2 Rule 15(1) supported by affidavit evidence
Erroneous. The sub-rules of Order 2 Rule 15(1) are to be applied specifically, not in combination; an application under sub-rule (1)(a) admits no affidavit evidence.
Applying the Golden Rule of statutory interpretation, the court held that the word 'or' between the sub-rules requires an applicant to elect the specific limb relied upon. It concurred with the Defendant's counsel and adopted the Olympic Escort and Mohamed Al-Amin authorities condemning mixed prayers under what is now Order 2 Rule 15.
Costs of the application
Costs awarded to the Defendant as the successful party, costs following the event under Section 27(1) of the Civil Procedure Act.
The court reiterated that costs are discretionary and follow the event under Section 27(1) of the Civil Procedure Act, citing the Supreme Court decisions in Jasbir Rai Singh and Cecilia Karuru Ngayo. Since the Plaintiffs failed to demonstrate why the defence should be struck out, the Defendant was awarded the costs of the application.
Legal principles established
#- An application under Order 2 Rule 15(1) of the Civil Procedure Rules must specify the particular sub-rule invoked; an omnibus application combining limbs that require evidence with those that do not is erroneous.
- The power to strike out pleadings is drastic and must be exercised sparingly and only in the clearest of cases where the pleading is clearly untenable.
- A defence raises a reasonable defence if it raises a bona fide triable issue; even one triable issue suffices to save a defence from being struck out.
Court orders
#- 1.The Notice of Motion application dated 3rd February, 2022 by the Plaintiffs/Applicants be and is hereby found to be unmerited and is dismissed with costs to the Defendant who participated in the hearing of the Application
- 2.For the sake of expediency this suit to be heard on 27th May, 2024, with a mention on 26th February, 2024 for taking directions under Order 37 Rules 13 and 16 and conducting a Pre-Trial Conference under Order 11 of the Civil Procedure Rules, 2010
- 3.The Defendant/Respondent is hereby awarded the costs of the Notice of Motion application dated 3rd February, 2022
- 4.The orders of this Court herein shall apply 'Mutatis Mutandis' to all the other nine (9) related matters namely ELC 222 of 2018; 223 of 2018; 224 of 2018; 225 of 2018; 226 of 2018; 227 of 2018; 228 of 2018; 229 of 2018; 230 of 2018; 231 of 2018; and 233 of 2018 – Kazungu Kitsao & Others – Versus - Kilifi East Farmers Co-operative Society
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land parcel No. 7/Group II/Mavueni; application under Order 2 Rule 15(1) & Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act (Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitsao & 243 others v Kilifi South East Farmers Co-operative Society Limited", Case Analysis (2023). Environment & Land Case 222, 223, 224, 225, 226, 227, 228, 229, 230 & 231 of 2018 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21620/eng@2023-11-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.