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ELCDismissedNot stated in judgment· [2025] KEELC 5502 (KLR)

Abdirahman v Radhod & 3 others (Environment and Land Case 145 of 2021) [2025] KEELC 5502 (KLR)

Environment and Land Court
24 July 2025
JOJ.O. Olola
1,825 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court refused to end a land dispute mid-trial, confirming that Kenyan judges strike out cases only in the clearest circumstances.

What this practically means

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Executive summary

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By a Notice of Motion dated 25th February 2025, the 1st Defendant, Bhupendra Rathod, sought to strike out the Plaintiff Hadija Abdirahman's statements dated 27th July 2021 and 26th June 2024 (the latter being that of her witness Mohamed Hussein Shabura) as scandalous, frivolous and vexatious, to dismiss the suit as an abuse of court process, and to have judgment entered in his favour. The Plaintiff opposed through Grounds of Opposition, arguing that the statements formed part of the record and her evidence, that striking out a part-heard suit would be drastic, and that judgment could not be entered for a defendant who had filed no counterclaim. The court, per J.O. Olola J, restated the settled principles governing striking out of pleadings under Order 2 Rule 15 of the Civil Procedure Rules, 2010, relying on D.T. Dobie & Company (Kenya) Ltd v Muchina, Saudi Arabian Airlines Corporation v Premium Petroleum, Blue Shield Insurance v Oguttu and Crescent Construction v Delphis Bank, all stressing that the power is exercised sparingly and only in the clearest of cases. The court found no merit in the application: both statements had been adopted and tested in cross-examination, and any contradictions therein fell to be evaluated by the court, not by a defendant yet to testify. The court also observed that the applicant had not in fact applied for any pleading or the suit itself to be struck out. The motion was dismissed with costs to the Plaintiff. The substantive land dispute, in which both parties claim title to the same property, remains part-heard.

Key legal issues

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Whether a defendant in a part-heard suit can strike out the plaintiff's witness statements and have the suit dismissed as an abuse of process

Holding

The application failed; the statements were admitted evidence whose contradictions fall to be evaluated by the court at judgment, and the applicant had not even applied under Order 2 Rule 15 for the suit or pleadings to be struck out

Reasoning

The court reviewed the settled principles on striking out pleadings, emphasizing that the power is exercised sparingly in the clearest of cases. The statements sought to be struck out formed part of the record and had been tested in cross-examination. The court noted the applicant had not actually sought striking out of pleadings under Order 2 Rule 15, and that a defendant yet to testify cannot assume the court's evaluative role. Accordingly, no merit was found and the motion was dismissed.

p. 4

Legal principles established

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  • The power to strike out a pleading should be used sparingly and only in the clearest of cases where the pleading is beyond redemption and incurable by amendment
  • Striking out is a drastic remedy exercised with the greatest care and caution, as natural justice requires that no litigant be driven away from the seat of justice
  • No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is incurable by amendment

Court orders

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  1. 1.The Notice of Motion dated 25th February 2025 is dismissed
  2. 2.Costs of the application awarded to the Plaintiff

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 2 Rule 15
  • Constitution of Kenya, 2010Article 159

Cases cited (5)

  • Jubilee Insurance Company Limited – v- Grace Anyona Mbinda
    (2016) eKLR
  • Saudi Arabian Airlines Corporation – v- Premium Petroleum Company Limited
    (2014) eKLR
  • Blue Shield Insurance Company Ltd – v- Joseph Mboya Oguttu
    (2009) eKLR
  • Crescent Construction Co. Ltd – v- Delphis Bank Ltd
    (2007) eKLR
  • D.T. Dobie & Company (Kenya) Ltd – v- Muchina
    (1982) KLR 1
Jurisdiction invoked
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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Abdirahman v Radhod & 3 others (Environment and Land Case 145 of 2021) [2025] KEELC 5502 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5502/eng@2025-07-24

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