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ELCPartially AllowedThika ELC OS No E007 of 2002· [2024] KEELC 1345 (KLR)

Karanja & 3 others v Ndungu (Enviromental and Land Originating Summons E007 of 2022) [2024] KEELC 1345 (KLR)

Environment and Land Court
4 March 2024
BEB M Eboso
1,636 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a family's adverse possession claim over auctioned land, ruling it a disguised attempt to dodge existing litigation.

What this practically means

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Executive summary

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The defendant in an originating summons for adverse possession brought a notice of motion dated 2/6/2023 seeking to strike out the suit as scandalous, frivolous, vexatious and an abuse of court process. He deposed that he purchased the suit properties, Ndarugu/Kamunyaka/721 and 722, at a public auction conducted by Family Finance Building Society in August 2004 and was registered as proprietor on 13/10/2004, the parcels then belonging to Wilfred Karanja Githuka. The chargor's wife and guardian ad litem, Teresia Nyambura Karanja, had earlier failed to restrain the sale in HCCC No 512 of 2003, and thereafter resisted the purchaser's attempts to take possession, prompting a possession suit (later Thika CMC E & L Case No 153 of 2018) that remains pending. The defendant contended the four plaintiffs, being the chargor's children or relatives, filed the adverse possession suit aware of that litigation. The plaintiffs, opposing by grounds of opposition and submissions, invoked Article 159(d) and argued triable issues, but elected not to file a replying affidavit. The court framed two questions: whether the suit was scandalous, frivolous or vexatious, and whether it was an abuse of process. Applying settled principles on striking out and abuse of process, and holding that the uncontroverted affidavit evidence stood unchallenged, the court found the plaintiffs were family members disguising themselves as bona fide adverse possessors while aware of subsisting litigation. The originating summons was struck out with costs to the defendant.

Key legal issues

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01

Whether the originating summons for adverse possession was scandalous, frivolous, vexatious and an abuse of court process

Holding

Yes; the suit was struck out because the plaintiffs are close family members of the chargor and his guardian ad litem who brought the suit aware of subsisting litigation over possession, disguising themselves as bona fide adverse possessors.

Reasoning

The defendant deposed that he bought the suit properties at a public auction in 2004, was registered as proprietor, and that the chargor through his wife and guardian ad litem resisted possession, leading to pending litigation before the Thika Chief Magistrate's Court. The plaintiffs filed no replying affidavit, leaving that evidence unchallenged. On the uncontroverted evidence the court found the elements of a vexatious claim and abuse of process demonstrated, satisfying the criteria for the draconian jurisdiction to strike out.

p. 3
02

Effect of the respondents' failure to file a replying affidavit

Holding

The applicant's sworn factual depositions stood unchallenged and were accepted as proved on a balance of probabilities.

Reasoning

The respondents elected to oppose the application only through grounds of opposition and written submissions. The court noted the supporting affidavit contained critical evidence requiring controverting evidence, and since no replying affidavit was filed, all the factual depositions remained uncontroverted and were taken as established.

p. 3

Legal principles established

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  • Striking out a pleading is a draconian jurisdiction exercisable only in plain cases where the pleading discloses no semblance of a cause of action or defence and is incurable by amendment
  • A pleading is frivolous when without substance, groundless or fanciful, and vexatious when it lacks bona fides and is hopeless or offensive
  • Abuse of process occurs where proceedings permitted by the rules of court to facilitate the pursuit of the truth are used for purposes extraneous to that objective
  • Uncontroverted affidavit evidence is taken as proved on a balance of probabilities

Court orders

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  1. 1.The originating summons/suit is struck out
  2. 2.The plaintiffs shall bear costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticle 159(d)

Cases cited (3)

  • The Co-operative Merchant Bank Ltd v George Fredrick Wekesa
    Civil Appeal No 54 of 1999
  • Muchanga Investment Ltd v Safaris Unlimited (Africa) Ltd & 2 others
    [2009] eKLR
  • Beinosi Wiyley
    1973 SA 721 [SCA]
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the originating summons for adverse possession; application under the court's inherent jurisdiction to strike out pleadings

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, "Karanja & 3 others v Ndungu (Enviromental and Land Originating Summons E007 of 2022) [2024] KEELC 1345 (KLR)", Case Analysis (2024). Thika ELC OS No E007 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1345/eng@2024-03-04

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