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ELCDismissedNot stated in the judgment· [2025] KEELC 5823 (KLR)

Dogra v Mwaiga & 6 others (Environment and Land Case E012 of 2021) [2025] KEELC 5823 (KLR)

Environment & Land Court of Kenya
28 May 2025
4,780 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kwale dismissed a landowner's bid to strike out the government defendants' defence, ruling the dispute must go to a full trial.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Kwale, delivered by Hon. Mr. Justice L. L. Naikuni, determines a Notice of Motion dated 3rd December 2024 by the Plaintiff, Bhupinder Singh Dogra, seeking to strike out the defence of the 3rd, 4th and 5th Defendants (state actors represented by the Attorney General) as frivolous, vexatious and an abuse of process, and further seeking declarations that the title deed issued to the 1st Defendant on 1st November 2006 and subsequent titles to the 2nd, 6th and 7th Defendants be declared void on affidavit evidence. The suit concerns Kwale/Diani Settlement Scheme/180, allegedly arising from the Diani Settlement Scheme established in 1979 on land surrendered by Ramisi Sugar Company. The court framed three issues: the merit of the application, entitlement to the other reliefs, and costs. Applying the settled principles in D.T. Dobie, Blue Shield, Saudi Arabian Airlines and related authorities, the court held that striking out pleadings is a draconian remedy reserved for the clearest of cases; the defence pleaded due diligence, fraud, limitation and lack of jurisdiction, raising bona fide triable issues. It further found no admission in the 4th Defendant's Replying Affidavit warranting summary judgment, and invoked the Article 50 right to be heard. The application was dismissed with no order as to costs, each party bearing its own costs, and directions issued for pre-trial on 17th June 2025 and hearing on 8th July 2025.

Key legal issues

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01

Whether the defence of the 3rd, 4th and 5th Defendants should be struck out as frivolous, vexatious and an abuse of process

Holding

The defence raises triable issues and cannot be struck out; striking out is draconian and reserved for the clearest of cases

Reasoning

The court reviewed the settled principles from D.T. Dobie, Blue Shield and other authorities that striking out should be exercised sparingly. The defence contests fraud and collusion and pleads due diligence, limitation and jurisdiction. Land matters are sensitive and parties should be allowed to ventilate their cases to conclusion; the affidavit evidence had not been tested.

p. 7
02

Whether summary judgment/declarations of void titles could issue on the basis of alleged admissions

Holding

No admission was made by the 4th Defendant warranting summary judgment; the right to be heard under Article 50 requires the Defendants be given a chance to ventilate their case

Reasoning

The 4th Defendant's Replying Affidavit merely set out the recorded history of the Diani Settlement Scheme and did not admit the plaintiff's root of title. A bona fide triable issue need not succeed, only warrant further interrogation at full trial. Denying a hearing would offend the constitutional right to be heard.

p. 9
03

Who bears the costs of the application

Holding

Although costs follow the event under Section 27(1) of the Civil Procedure Act, the court reserved its discretion and ordered each party to bear its own costs

Reasoning

The court restated the principle that costs follow the event, citing Supreme Court decisions, but chose not to award costs to the successful Respondents, reserving its discretion given the nature of the application and the ongoing suit.

p. 10

Legal principles established

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  • The power to strike out a defence should be used sparingly and only in the clearest of cases where the defence is a sham raising no bona fide triable issue
  • If a defence raises even one bona fide triable issue, the defendant must be given leave to defend
  • Summary judgment on admission requires a plain, obvious and clear admission with no triable issues

Court orders

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  1. 1.That the Notice of Motion application dated 3rd December 2024 be and is hereby dismissed and thus the matter to proceed on accordingly
  2. 2.That there be a mention of the matter on 17th June, 2025 for a Pre-Trial Session pursuant to Order 11 of the Civil Procedure Rules, 2010, with hearing on 8th July, 2025
  3. 3.That each party to bear its own costs
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; application under Order 1 Rule 15(1)(b,c,d) and Order 2 Rule 15 of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21

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, "Dogra v Mwaiga & 6 others (Environment and Land Case E012 of 2021) [2025] KEELC 5823 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5823/eng@2025-05-28

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