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ELCDismissedMombasa ELC (Malindi) - Notice of Motion dated 6/6/2024 (suit number not stated in judgment)· [2025] KEELC 3236 (KLR)

Fulson Company Limited v Rama & 3 others (Environment & Land Case 130 of 2018) [2025] KEELC 3236 (KLR)

Environment and Land Court
7 April 2025
MNMwangi Njoroge
1,595 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Malindi court refused to strike out a landowner's suit, confirming Kenya's courts rarely end cases before a full hearing.

What this practically means

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Executive summary

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The 2nd Defendant moved the court by notice of motion dated 6/6/2024 under sections 1A, 3, 3A and 63(e) of the Civil Procedure Act and Order 2 Rule 15 of the Civil Procedure Rules, seeking striking out of the Plaintiff's entire suit with costs. The Applicant argued that the Plaintiff's title had been cancelled by a judgment delivered on 16/2/2022 in Mombasa ELC Petition No. 32 of 2020, which was never appealed, leaving the Plaintiff without a valid title and rendering the suit an abuse of court process. The Plaintiff opposed, explaining that it purchased sub-division No. LR 17835/1 from the 3rd Defendant in 2010 and took possession, and that the cancellation judgment was subsequently reviewed, with the Petitioner therein awarded Kshs. 175,000,000 in compensation in lieu of cancellation, leaving the registration status of the title and subdivisions undisturbed. The Plaintiff also noted it was not a party to that petition and that no order was made against its title. The court, applying Yaya Towers Ltd v Trade Bank Ltd and Blue Shield Insurance v Oguttu, reaffirmed that striking out is a drastic, discretionary remedy exercised sparingly and only where a pleading is clearly untenable, without descending into the merits. It held that the dispute involves possession of land and the effect of the reviewed Mombasa judgment should be determined at the hearing. The application was dismissed with costs and the defence case set down for hearing, with a mention on 17/6/2025.

Key legal issues

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Whether the Plaintiff's suit should be struck out as an abuse of process following the judgment and review in Mombasa ELC Petition No. 32 of 2020 cancelling the mother title

Holding

The application was dismissed; the effect of the cancellation and subsequent review should be determined at the hearing, as the dispute involves possession of land and warrants determination on merit

Reasoning

The court held that striking out is discretionary and drastic, to be exercised sparingly. Although the mother title LR 17835 was cancelled on 16/2/2022, that judgment was reviewed by consent, with the Petitioner awarded Kshs. 175,000,000 in compensation in lieu of cancellation, leaving registration status undisturbed. The interpretation of those events, and the possession claim, should be the subject of the full hearing rather than resolved on a striking-out application.

p. 4

Legal principles established

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  • Striking out of pleadings is a drastic, discretionary remedy to be used sparingly and only where a pleading is clearly untenable, without embarking on the merits

Court orders

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  1. 1.The notice of motion application dated 6/6/2024 is dismissed with costs
  2. 2.The defence case be set down for hearing at the earliest
  3. 3.The matter to be mentioned on 17/6/2025

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 3, 3A and 63(e)
  • Civil Procedure Rules, 2010Order 2 Rule 15(1)

Cases cited (5)

  • Technology Investments Limited & 3 others v Patel & 2 Others (ELC 55 & 179 of 2020 consolidated)
    [2023] KEELC 16641 (KLR)
  • Yaya Towers Limited v Trade Bank Limited (In Liquidation)
    Civil Appeal No. 35 of 2000
  • Blue Shield Insurance Company Ltd -v- Joseph Mboya Oguttu
    [2009] eKLR
  • D.T. Dobie and Company (Kenya) Ltd vs Muchina
    (1982) KLR 1
  • Cail Zeiss Stiftung vs Ranjuer & Keeler Ltd and others (No.3)
    (1970) ChpD 506
Jurisdiction invoked
Sections 1A, 3, 3A and 63(e) of the Civil Procedure Act and Order 2 Rule 15 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, "Fulson Company Limited v Rama & 3 others (Environment & Land Case 130 of 2018) [2025] KEELC 3236 (KLR)", Case Analysis (2025). Mombasa ELC (Malindi) - Notice of Motion dated 6/6/2024 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3236/eng@2025-04-07

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