Registered Trustees of Telposta Pension Scheme v The Chief Lands Registrar & 3 others (Environment & Land Case E009 of 2022) [2024] KEELC 680 (KLR)
The bottom line
#A Kenyan land court refused to strike out a disputed ownership case and froze the property, so both sides must now prove their claims at trial.
What this practically means
#Executive summary
#Key legal issues
#Whether a party seeking striking out under Order 2 Rule 15 may rely on evidence
The court declined to strike out the suit, holding that the applicant was inviting the court to examine and analyse evidence before trial, contrary to the settled principle that striking out is reserved for plain and obvious cases
The court relied on D.T. Dobie & Company (Kenya) Ltd v Muchina and Nitin Properties Ltd v Jagjit S. Kalsi to hold that striking out is drastic and should be exercised with extreme caution. The 4th Defendant invited the court to examine, analyse and make findings on evidence intended to be produced by the Plaintiff before production of that evidence. The court found that the parties should be given a chance to adduce evidence and interrogate the documents relied upon at trial, so that the real issues in controversy could be determined.
Whether an interlocutory injunction should issue pending trial
Granted, on the basis that both parties claim ownership, ownership could only be determined at full hearing, and the status quo and the suit land should be preserved in the meantime
Applying the Giella v Cassman Brown principles, the court noted that both the Plaintiff and the 4th Defendant claim ownership of the suit property and that ownership would be determined through the full hearing. Given the rival claims, the court found it in the interest of justice to preserve the status quo and maintain the suit land pending determination, and accordingly allowed the Plaintiff's application dated 14th March 2022.
Legal principles established
#- A suit should not be summarily dismissed unless it is so hopeless that it plainly and obviously discloses no reasonable cause of action and is incurable by amendment
- Striking out is a drastic remedy, invoked only in plain and obvious cases and exercised with extreme caution
- Where rival claims of ownership exist, ownership should be determined at full trial and the status quo preserved pending hearing
Court orders
#- 1.The 4th Defendant's application dated 26th July 2022 to strike out the suit is declined; the suit to proceed to trial
- 2.The Plaintiff's application dated 14th March 2022 is allowed and a temporary order of injunction issued restraining the Respondents from disposing of, transferring, charging and/or advertising the suit land parcel No. Kisumu Municipality Block 12/153 pending hearing and determination of the suit
- 3.Costs of the injunction application to the 4th Defendant
- Jurisdiction invoked
- Inherent jurisdiction of the court; applications under Sections 1A, 1B, 3A, 63(e) of the Civil Procedure Act and Order 40 rules 1, 2 and 10 and Order 51 Rule 1 and Order 2 rule 15 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Registered Trustees of Telposta Pension Scheme v The Chief Lands Registrar & 3 others (Environment & Land Case E009 of 2022) [2024] KEELC 680 (KLR)", Case Analysis (2024). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/680/eng@2024-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.