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ELCDismissedNot stated in judgment· [2024] KEELC 6288 (KLR)

Njapit & 3 others v Mussa & 4 others (Environment & Land Case E006 of 2021) [2024] KEELC 6288 (KLR)

Environment and Land Court
30 September 2024
MCMbogo C.G.
1,900 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to throw out a decades-old property dispute, ruling that fraud claims must be fully tried, not dismissed on paper.

What this practically means

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Executive summary

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The defendants/applicants filed a notice of motion dated 9th April, 2024 under Order 2 rule 15(1)(a)-(d) of the Civil Procedure Rules and Section 7 of the Limitations of Actions Act seeking to strike out the plaintiffs' plaint dated 3rd February, 2021. They argued that the claim for recovery of land, arising from an alleged cause of action accruing on 13th February, 1980, was statute barred after 12 years; that the plaintiffs had filed a similar suit, Nakuru ELC No. 168 of 2008, still pending, amounting to an abuse of court process; and that the plaintiffs had no demonstrable co-ownership of the suit properties, Cis-Mara/Olchoro/Oiruwa/17 and 19. The plaintiffs/respondents opposed, asserting that their registration of the defendants was procured by fraud, that no sale agreement or transfer documents existed, and that fraud claims fall outside the statutory limitation regime under Section 26 of the Limitations of Actions Act. Both parties filed written submissions relying on authorities on striking out pleadings and limitation. The court, applying Yaya Towers Limited v Trade Bank Limited and D.T. Dobie & Company Kenya Limited v Joseph Mbaria Muchina, held that striking out is discretionary, draconian and to be exercised only in the clearest of cases. The plaint pleaded acts and particulars of fraud concerning the 1980 registration, and the court found that a full trial was necessary to illuminate the circumstances leading to the suit. It concluded that the plaint was neither frivolous, scandalous nor bereft of a reasonable cause of action. The notice of motion was dismissed with costs in the cause, and the matter set for further mention on 9th October, 2024 for directions.

Key legal issues

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01

Whether the plaint discloses no reasonable cause of action, is scandalous, frivolous, vexatious or an abuse of court process under Order 2 Rule 15(1)

Holding

The plaint is not frivolous, scandalous or abusive; it raises triable issues requiring a full trial.

Reasoning

The court applied Yaya Towers and D.T. Dobie, holding that striking out is draconian and only justified where a claim is bound to fail. Pleadings of fraud regarding the 1980 registration of the suit properties and a December 2020 visit raised issues best determined at trial. A plain reading of the plaint showed a reasonable cause of action, so the inherent jurisdiction to strike out was not merited.

p. 4
02

Whether the claim for recovery of land is time barred under Section 7 of the Limitations of Actions Act

Holding

The limitation objection could not be resolved on a striking-out application; the pleaded fraud required a full trial.

Reasoning

The applicants argued the cause of action accrued on 13th February, 1980 and the 12-year limitation period expired in 1992. The respondents countered that fraud concealed the right of action under Section 26 of the Limitations of Actions Act. The court found the pleaded fraud raised factual disputes that a full trial would clarify, and therefore the suit should proceed to a hearing on its merits.

p. 4

Legal principles established

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  • Striking out of pleadings is a discretionary and drastic remedy to be exercised only in the clearest of cases where the claim is bound to fail.
  • A suit raising a semblance of a cause of action, particularly fraud requiring proof, should be allowed to proceed to trial rather than be summarily dismissed.

Court orders

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  1. 1.The notice of motion dated 9th April, 2024 is dismissed
  2. 2.Costs in the cause
  3. 3.Further mention on 9th October, 2024 for further directions

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 rule 15(1)(a), (b), (c) and (d)
  • Limitations of Actions ActSection 7
  • Limitations of Actions ActSection 26

Cases cited (9)

  • Madison Insurance Company Limited v Augustine Kamanda Gitau
    [2020] eKLR
  • Satya Bhama Gandhi v Director of Public Prosecutions & 3 Others
    [2018] eKLR
  • Sohanlaldurgadass Rajput & Another v Divisional Integrated Development Programmes Co. Limited
    [2021] eKLR
  • Dickson Ngige Ngugi v Consolidated Bank Ltd (Formerly Jimba Credit Corporation Limited) & Another
    [2020] eKLR
  • Tureti Obara v Peter Koipetai Nengisoi
    [2014] eKLR
  • Philip Kimutai Langat v John Kibet Maina
    Kericho High Court Civil Case 100 of 2010
  • Mehuba Gelan Kelil & 2 Others v Abdulkadir Shariff Abdirhim & 4 Others
    [2015] eKLR
  • Yaya Towers Limited v Trade Bank Limited (In Liquidation)
    Civil Appeal No. 35 of 2000
  • D.T. Dobie & Company Kenya Limited v Joseph Mbaria Muchina & Another
    [1980] eKLR
Jurisdiction invoked
Order 2 rule 15(1)(a), (b), (c) and (d) of the Civil Procedure Rules and Section 7 of the Limitations of Actions 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, "Njapit & 3 others v Mussa & 4 others (Environment & Land Case E006 of 2021) [2024] KEELC 6288 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6288/eng@2024-09-30

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