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ELCDismissed· [2025] KEELC 7147 (KLR)

Mainoya (Suing as the Legal Representatives of the Estate of Nasumpati Mainoya Shakua – Deceased) v Nairobi Pacific Hotel Limited & 2 others (Environment and Land Case E072 of 2024) [2025] KEELC 7147 (KLR)

Environment and Land Court
16 October 2025
MMM.D. Mwangi
1,689 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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This is a ruling of the Environment and Land Court at Kajiado (M.D. Mwangi, J) on the Plaintiff's Notice of Motion dated 29th October, 2024, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 2 Rule 15(a) of the Civil Procedure Rules, seeking to strike out the 1st Defendant's Defence and have judgment entered as prayed in the Plaint. The Plaintiff alleges that land belonging to his late mother, Nasumpati Mainoya Shakua, was fraudulently subdivided, transferred and charged to secure a Kshs. 40 Million loan without her executing any transfer documents. The 1st Defendant opposed, contending that its Defence complied with Order 2 Rule 3, that the burden of proof lay on the Plaintiff under the Evidence Act, and that the Plaintiff's own green card showed his mother was never registered as proprietor of the original parcel. The court framed a single issue: whether the application was merited. Applying the settled principles in Blue Shield Insurance v Oguttu and D.T. Dobie, the court held that the striking-out power is discretionary and must be exercised sparingly, without venturing into the merits. Since both parties claimed absolute proprietorship of Kajiado/Kaputei-North/14997 and 14998, the dispute presented triable issues resolvable only at full trial with evidence tested by cross-examination. The court also noted the law's protection of title under Section 26 of the Land Registration Act. The application was disallowed, parties were directed to comply with Order 11, and costs were placed in the cause.

Key legal issues

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Whether the 1st Defendant's Defence should be struck out under Order 2 Rule 15 of the Civil Procedure Rules

Holding

The application was disallowed. The Defence raised triable issues, as both parties claim absolute proprietorship of the suit parcels, and the striking-out discretion is to be exercised sparingly without delving into the merits.

Reasoning

The court restated the settled principles from Blue Shield Insurance v Oguttu and D.T. Dobie: the power to strike out is permissive, not mandatory, must not usurp the trial judge's function, and should be used sparingly where a pleading is clearly untenable. The documents filed revealed a genuine dispute as to ownership of Kajiado/Kaputei-North/14997 and 14998, which could only be resolved at full trial with evidence tested by cross-examination. The prayers sought also required the 1st Defendant be accorded fair hearing.

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Legal principles established

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  • The power to strike out a pleading is discretionary and must be used sparingly, only where the pleading is clearly untenable, and without embarking on the merits
  • Where parties make competing claims of proprietorship, ownership can only be determined at full trial where evidence is tested by cross-examination

Court orders

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  1. 1.The Plaintiff's invitation to strike out the 1st Defendant's defence declined and the Notice of Motion dated 29th October, 2024 disallowed
  2. 2.Parties directed to ensure compliance with Order 11 of the Civil Procedure Rules to facilitate expeditious disposal
  3. 3.Costs of the Application to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 2 Rule 15(1)(a), Order 2 Rule 3, Order 7 Rule 5, Order 11
  • Evidence ActSections 107, 108, 109, 112
  • Land Registration ActSection 26

Cases cited (4)

  • Blue Shield Insurance Company Ltd V Joseph Mboya Oguttu
    [2009] KECA 221 (KLR)
  • 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
  • Wenlock V Moloney
    [1965] 2 All E.R 871
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act and Order 2 Rule 15(a) of the Civil Procedure Rules

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, "Mainoya (Suing as the Legal Representatives of the Estate of Nasumpati Mainoya Shakua – Deceased) v Nairobi Pacific Hotel Limited & 2 others (Environment and Land Case E072 of 2024) [2025] KEELC 7147 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7147/eng@2025-10-16

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