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ELCDismissedChamber Summons Application dated 2nd February, 2023 (arising from a Plaint before the High Court, Machakos)· [2024] KEELC 3301 (KLR)

Mulinge Residents Welfare Association v Development and Education Network Co-operative Savings & Credit Society Ltd & 16 others; Momanyi & 3 others (Defendant) (Environment & Land Case E002 of 2023) [2024] KEELC 3301 (KLR)

High Court of Kenya
22 April 2024
COChristine Ochieng
1,748 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Machakos refused to strike out a land dispute plaint, ruling that genuine disputes about who owns land must be decided at a full hearing, not on paper applications.

What this practically means

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Executive summary

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The Applicant, Mulinge Residents Welfare Association through its officials, filed a Chamber Summons dated 2nd February 2023 seeking to strike out a Plaint on the ground that it was filed without proper and valid instructions from the 2nd Plaintiff, or in the alternative, to strike out the 2nd Plaintiff's name from the suit. The supporting affidavit of Alexander Makau Muema, deponing as Chairman, asserted that the Respondents were not members of the Association, never purchased land from it, and that the suit properties belonged to third parties. The Respondents, through Richard Ochillah, opposed the application, demonstrating that on 18th February 2023 an AGM elected new officials (Richard Ochilla Asiyo as Chairman, Amos Ochieng Okoyo as Secretary, and Lawrence Mwangi Waigwa as Treasurer), a fact confirmed by the Registrar of Societies on 16th March 2023 under Section 17 of the Societies Act. They maintained Muema was a stranger to the Association's membership and leadership. Justice Christine Ochieng framed the sole issue as whether the Plaint should be struck off with costs. Relying on Order 2 Rule 15(1) of the Civil Procedure Rules and authorities including Civicon Limited v Kivumatt Limited and Delphis Bank Limited v Caneland Limited, the court held that the Registrar of Societies letter did not show Muema as Chairman, that the Plaint raised triable issues unsuitable for interlocutory determination, and that validly elected officials had filed the suit. The application was found unmerited and dismissed, with costs in the cause.

Key legal issues

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Whether the Plaint should be struck out for want of instructions and as abusive of court process

Holding

Application dismissed; Plaint discloses triable issues and valid officials instructed the advocates

Reasoning

The Registrar of Societies confirmed Richard Ochilla Asiyo, Amos Ochieng Okoyo and Lawrence Mwangi Waigwa as the elected officials of Mulinge Residents Welfare Association; Alexander Makau Muema was not shown as Chairman. The Plaint raised triable issues about ownership of suit lands that cannot be resolved at interlocutory stage, and the Applicant furnished no proof that the Plaintiffs lacked instructions. Striking out would be inappropriate.

p. 4

Legal principles established

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  • Power to strike out pleadings must be exercised only after considering all facts and without embarking on the merits

Court orders

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  1. 1.Chamber Summons Application dated 2nd February, 2023 dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 2 Rule 15(1)
  • Societies ActSection 17

Cases cited (9)

  • Irene Chepkosgei Rop v Samuel Kibowen Towett
    (2017) eKLR
  • D T Dobie & Company (K) Ltd v Muchina
    (1982) KLR 1
  • Blue Shield Insurance Company Ltd v Joseph Mboya Oguttu
    [2009] eKLR
  • Wenlock v Moloney
    (1965) 2 All ER 871
  • Madison Insurance Company Limited v Augustine Kamanda Gitau
    (2020) eKLR
  • Prafulla Enterprises Ltd v Norlake Investments Ltd
    Kisumu High Court Civil Case No. 145 of 1997; LLR 7412 (HCK)
  • Francis Kamande v Vanguard Electrical Services Ltd
    Civil Appeal No. 152 of 1996 LLR 4914 (CAK)
  • Civicon Limited v Kivumatt Limited & 2 Others
    (2015) eKLR
  • Delphis Bank Limited v Caneland Limited
    [2014] eKLR
Jurisdiction invoked
Order 2 Rule 15(1) of the Civil Procedure Rules, 2010

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, "Mulinge Residents Welfare Association v Development and Education Network Co-operative Savings & Credit Society Ltd & 16 others; Momanyi & 3 others (Defendant) (Environment & Land Case E002 of 2023) [2024] KEELC 3301 (KLR)", Case Analysis (2024). Chamber Summons Application dated 2nd February, 2023 (arising from a Plaint before the High Court, Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3301/eng@2024-04-22

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