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ELCDismissedNot stated in the judgment (Motion dated 7/6/2023 within pending ELC suit)· [2024] KEELC 1289 (KLR)

Gitau & another v Mbuthu & another (Environment & Land Case E029 of 2022) [2024] KEELC 1289 (KLR)

Environment and Land Court
11 March 2024
JKJ G Kemei
2,219 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to evict a widow and son without trial, ruling their fraud claims deserved a full hearing despite earlier succession proceedings.

What this practically means

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Executive summary

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The Plaintiffs, step-sisters of the Defendants (the widow and son of the late Eliud Macharia Ndirangu), moved the court under Order 2 Rule 15 of the Civil Procedure Rules seeking to strike out the Defendants' defence and counterclaim as scandalous, frivolous, vexatious and an abuse of process, and to have judgment entered as prayed in their Plaint seeking eviction from parcels of land inherited through concluded succession proceedings in Kiambu P&A 22 of 2000, P&A 2070 of 2011 and Court of Appeal Civil Appeal 319 of 2019. The Defendants, administrators of the late Eliud's estate, resisted the motion, contending that a will of the late Macharia Kimani was never considered, impugning the certificate of confirmation of grant, and raising issues of fraud, irregular transfers and entitlement to the disputed parcels. The court restated the settled principles from D.T. Dobie v Muchina that striking out is discretionary and must be exercised sparingly and only in the clearest of cases without embarking on the merits. It found the defence and counterclaim raise triable issues of fraud, misrepresentation, cancellation of title and general and special damages requiring evidence at trial, and that the Defendants are entitled to a fair hearing under Article 50 of the Constitution. The court declined to opine on the prior succession litigation to avoid prejudicing the trial, found the application without merit, and dismissed it with costs to the Defendants.

Key legal issues

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01

Whether the defence should be struck out under Order 2 Rule 15 as res judicata of prior succession proceedings

Holding

Application dismissed; the defence and counterclaim raise triable issues that must proceed to trial

Reasoning

The court held it could not determine the matter summarily because both the Plaint and the counterclaim require evidence on trespass, fraud, cancellation of title and damages. Striking out would drive both sides from the seat of justice. The Defendants also enjoy the Article 50 right to be heard. The court declined to comment on the prior succession litigation to avoid prejudicing the trial.

p. 4
02

The applicable principles for striking out pleadings

Holding

The D.T. Dobie principles apply: act cautiously, do not deal with merits, sustain a suit where a semblance of cause of action exists

Reasoning

The court restated the settled principles that striking out is discretionary, exercised only in the clearest of cases, without embarking on the merits, since the court is not fully informed without discovery and cross-examination. A pleading is scandalous, frivolous or vexatious per the definitions cited, but denial of a well-known fact may also be scandalous.

p. 3

Legal principles established

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  • The power to strike out pleadings is discretionary, must be sparingly exercised, and a suit should not be summarily dismissed unless it plainly and obviously discloses no reasonable cause of action and is incurable by amendment
  • A triable issue at the striking-out stage need not be one that will succeed, but one that warrants judicial examination

Court orders

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  1. 1.The application dated 7/6/2023 is dismissed with costs in favour of the Respondents
Jurisdiction invoked
Article 50 of the Constitution of Kenya; Order 2 Rule 15 Civil Procedure Rules

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, "Gitau & another v Mbuthu & another (Environment & Land Case E029 of 2022) [2024] KEELC 1289 (KLR)", Case Analysis (2024). Not stated in the judgment (Motion dated 7/6/2023 within pending ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1289/eng@2024-03-11

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