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ELCDismissedOriginating Summons dated 19th May 2023 (as stated; also referred to as dated 17th May 2023)· [2024] KEELC 4756 (KLR)

Mpunge Investments Limited v Wiseborne Industries (K) Limited & another (Environment & Land Case E029 of 2023) [2024] KEELC 4756 (KLR)

Environment and Land Court
13 June 2024
JMJ. M. Mutungi
1,382 words in judgment
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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 Defendant (Applicant), Ceasar Njagi Kunguru, moved the Court by Notice of Motion dated 6th July 2023 under Order 2 Rule 15(1) and Order 51 Rule 1 of the Civil Procedure Rules, and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking striking out of the Plaintiff's Originating Summons. He argued that the Plaintiff is the undisputed registered owner of the suit properties, having purchased them at auction after his default on a loan with Fortune Sacco Limited, that he does not interfere with the properties, and that the suit is frivolous, vexatious and an abuse of process. The Plaintiff opposed through a Replying Affidavit of Ben Manyara Kaimenyi, contending that despite registration, the 2nd Defendant retains control of the properties and denies it access, and that the suit raises a reasonable cause of action. The Court framed a single issue: whether the Originating Summons ought to be struck out under Order 2 Rule 15(1). Restating that striking-out jurisdiction is draconian and a last resort, and relying on Co-Operative Merchant Bank Ltd v Wekesa and Trust Bank Ltd v Amin Company Ltd, the Court held the suit raises genuine triable issues — notably the conflicting claims over access to the properties and the discrepancy between the purchase price and valuation — which can only be resolved at trial with evidence. The application dated 6th July 2023 was dismissed with costs in the cause.

Key legal issues

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Whether the Originating Summons should be struck out as scandalous, frivolous, vexatious or an abuse of process under Order 2 Rule 15(1)

Holding

The application was dismissed; the suit discloses triable issues requiring a full trial.

Reasoning

The Court restated that striking out is a draconian, discretionary jurisdiction of last resort, to be used only where a pleading discloses no semblance of a cause of action and is incurable by amendment. Here the parties' pleadings conflict: the Plaintiff, though admittedly registered owner, alleges it is denied access to the suit properties, while the Applicant denies interference but did not respond to the enclosure allegations. Conflicting issues on access, and the discrepancy between purchase price (Kshs. 55,000,000) and valuation (Kshs. 87,000,000), mean the disputed facts require evidence at trial.

p. 3

Legal principles established

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  • The jurisdiction to strike out pleadings is draconian and must be exercised sparingly, only where a suit is plainly hopeless and incurable by amendment.
  • A triable issue need not be one that must succeed at trial, but one requiring interrogation for a justiciable determination.

Court orders

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  1. 1.The application dated 6th July 2023 is dismissed with costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)(a),(b),(c),(d)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 1A, 1B & 3A

Cases cited (2)

  • Co-Operative Merchant Bank Ltd. vs George Fredrick Wekesa
    Civil Appeal No. 54 of 1999 (unreported)
  • Trust Bank Limited v Amin Company Ltd & Another
    (2000) KLR 164
Jurisdiction invoked
Order 2 Rule 15(1) and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B & 3A of the Civil Procedure Act

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, "Mpunge Investments Limited v Wiseborne Industries (K) Limited & another (Environment & Land Case E029 of 2023) [2024] KEELC 4756 (KLR)", Case Analysis (2024). Originating Summons dated 19th May 2023 (as stated; also referred to as dated 17th May 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4756/eng@2024-06-13

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