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ELCDismissedNot stated in judgment· [2024] KEELC 4752 (KLR)

Plaintiff v Idriss Shikana Wamukoya & another (Notice of Motion dated 11th September 2023)

Environment and Land Court
19 June 2024
DOD. O. Ohungo
1,262 words in judgment
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The bottom line

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A Kenyan court refused to strike out a land ownership claim, confirming that such applications must be decided on pleadings alone, without supporting evidence.

What this practically means

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Executive summary

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The plaintiff filed an Originating Summons dated 17th August 2023 claiming title to an 80' x 100' (0.08 Ha) portion of North Wanga/Kholera/1012 by adverse possession, asserting that the defendants were registered proprietors of North Wanga/Kholera/1392. The defendants moved the court by Notice of Motion dated 11th September 2023 seeking striking out of the OS with costs for failure to disclose a cause of action, contending that parcel 1012 no longer existed, having been closed on 28th January 1997, and that parcel 1392 was registered in the name of Johnson Shikuku Misiko, a non-party. They supported the application with an affidavit and annexures, including a certified register and official search. The plaintiff opposed, asserting he had established the elements of adverse possession. The court, applying Order 2 Rule 15(1)(a) of the Civil Procedure Rules rather than Section 13(7) of the Environment and Land Court Act, held that striking out is a draconian remedy for the clearest of cases; that no evidence is admissible on such an application, the court being confined to the pleading itself, per Crescent Construction v Delphis Bank; and that the defendants' reliance on annexures improperly sought determination on the merits. The OS was found to disclose a clearly discernible cause of action in adverse possession. The application was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether the OS should be struck out for failure to disclose cause of action

Holding

The OS discloses a discernible cause of action in adverse possession; the application, which relied exclusively on annexed evidence, was improperly founded and was dismissed

Reasoning

Striking out is a draconian remedy reserved for the clearest of cases. A pleading raising a triable issue must proceed to trial. An application under Order 2 Rule 15(1)(a) must be decided on the pleading alone, without affidavits or annexures. The defendants' case rested entirely on annexures seeking a determination on the merits, which is impermissible at this interlocutory stage. The plaintiff's claim of title by adverse possession is plainly discernible, so the application fails.

p. 2

Legal principles established

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  • On an application to strike out a pleading for failure to disclose a cause of action, no evidence is admissible; the court examines only the pleading itself

Court orders

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  1. 1.Notice of Motion dated 11th September 2023 dismissed
  2. 2.Costs of the application awarded to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15 (1)(a)
  • Environment and Land Court ActSection 13 (7)

Cases cited (6)

  • Stephen Mwadoro & 56 others v Alhad Mohamed Hatimy
    [2020] eKLR
  • Wesley Kipyegon Bor & 8 others v Richard Pares & 3 others
    [2020] eKLR
  • Gabriel Mbui v Mukinda Maranya
    [1993] eKLR
  • Kimani Ruchine v Swift Rutherfords & Co Ltd
    [1980] KLR 10
  • D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another
    [1980] eKLR
  • Crescent Construction Co Ltd v Delphis Bank Ltd
    [2007] eKLR
Jurisdiction invoked
Environment and Land Court Act, Section 13 (7); Civil Procedure Rules, Order 2 Rule 15 (1)(a)

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, "Plaintiff v Idriss Shikana Wamukoya & another (Notice of Motion dated 11th September 2023)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4752/eng@2024-06-19

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