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ELCDismissedNot stated in the excerpt (Mombasa ELC application dated April 21, 2022)· [2024] KEELC 1637 (KLR)

Chisonzo & 3 others v Chesaina & 4 others (Environment & Land Case 287 of 2012) [2024] KEELC 1637 (KLR)

Environment and Land Court
19 March 2024
NMN.A. MATHEKA
1,236 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The 2nd and 3rd Defendants, by a Notice of Motion dated April 21, 2022 brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 2 rule 15(d) and Order 17 Rule 2(1) and 2(3) of the Civil Procedure Rules, sought to strike out the Plaint dated December 7, 2012 and dismiss the Plaintiffs' suit with costs, or in the alternative to dismiss it for want of prosecution. They argued that the suit, claiming the suit premises Kwale/Diani/477 as ancestral land and alleging that the 1st Defendant's October 3, 1994 registration was procured by fraud, was filed over 18 years after registration and was therefore time barred and an abuse of process; and that no step had been taken since February 17, 2020. The Plaintiffs opposed, contending the application was overtaken by events because the suit, after dismissal for want of prosecution on October 3, 2022, had been reinstated by an order of May 10, 2023. The court, applying Co-Operative Merchant Bank Ltd v Wekesa, Yaya Towers Ltd v Trade Bank Ltd and D.T. Dobie & Co Ltd v Muchina, held that striking out is a draconian remedy reserved for plain cases. Because the plaint pleaded fraud and misrepresentation, which is not subject to the Limitation of Actions Act, it disclosed a reasonable cause of action subject to proof. The want-of-prosecution ground was overtaken by the reinstatement. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the plaint should be struck out under Order 2 rule 15 as time barred and an abuse of process

Holding

The plaint alleges fraud and misrepresentation in the acquisition of the suit property, which is not subject to the Limitation of Actions Act; it raises a reasonable cause of action subject to proof and cannot be struck out at this stage

Reasoning

The applicants argued that the suit, filed over 18 years after the 1994 registration, was time barred. The court noted Order 2 Rule 15(2) bars evidence on a no-reasonable-cause-of-action application, and perused the plaint itself. Since the plaint pleaded fraud and misrepresentation, which the court held is not subject to the Limitation of Actions Act, a reasonable cause of action was disclosed and striking out was unwarranted.

p. 3
02

Whether the suit should be dismissed for want of prosecution

Holding

The application was overtaken by events because the suit had already been reinstated on May 10, 2023, with directions to comply with Order 11 and set the suit down for hearing

Reasoning

The applicants contended that no step had been taken since February 17, 2020. The respondent showed the suit had been dismissed for want of prosecution on October 3, 2022, and a Motion dated November 2, 2022 succeeded on May 10, 2023, reinstating it. Dismissal for want of prosecution was therefore not available and the application lacked merit.

p. 3

Legal principles established

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  • Striking out a pleading is a draconian act reserved for plain cases
  • A claimant is entitled to pursue a claim however implausible unless the opponent demonstrates shortly and conclusively that it is bound to fail or is an abuse of process
  • No suit ought to be summarily dismissed unless it is so hopeless that it plainly and obviously discloses no reasonable cause of action
  • Fraud as a basis for setting aside title is not subject to the Limitation of Actions Act and may constitute a reasonable cause of action

Court orders

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  1. 1.The Notice of Motion dated April 21, 2022 is dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 2 rule 15(1)(a)-(d) and 15(2)
  • Civil Procedure RulesOrder 17 Rule 2(1) and 2(3)
  • Civil Procedure RulesOrder 11
  • Limitations of Actions Actnull

Cases cited (3)

  • Co-Operative Merchant Bank Ltd. vs George Fredrick Wekesa
    Civil Appeal No. 54 of 1999
  • Yaya Towers Limited vs Trade Bank Limited (In Liquidation)
    Civil Appeal No. 35 of 2000
  • D.T. Dobie & Company Kenya Limited vs Joseph Mbaria Muchina & Another
    [1980] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 2 rule 15(d), Order 17 Rule 2(1) and 2(3) of the 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, "Chisonzo & 3 others v Chesaina & 4 others (Environment & Land Case 287 of 2012) [2024] KEELC 1637 (KLR)", Case Analysis (2024). Not stated in the excerpt (Mombasa ELC application dated April 21, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1637/eng@2024-03-19

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