Subeya v Subeya & another (Land Case E002 of 2024) [2025] KEELC 7343 (KLR)
The bottom line
#A Mombasa land court refused to strike out a counterclaim in a family land dispute, ruling that striking out pleadings is a drastic step that should be used sparingly.
What this practically means
#Executive summary
#Key legal issues
#Whether the counterclaim is time barred under section 7 of the Limitation of Actions Act
The claim was not struck out; when the right of action accrued cannot be determined without evidence
The counterclaim sought a declaration of trust and removal of the plaintiff's name from the register. The court held it could not determine when the right accrued without trial evidence, since the defendants suggested the plaintiff's name was entered for convenience during purchases while they worked abroad. It was prudent to let the claims proceed to hearing.
Whether the court lacks jurisdiction over Kilifi/Roka/1380 on territorial grounds
Territorial objection rejected in exercise of the court's overriding objective, to avoid multiplicity of suits
The court accepted the property lies outside its territorial jurisdiction under sections 12 and 13 of the Civil Procedure Act, but declined to strike out, relying on the parties' familial relationships, the historical connection of the suit properties, and sections 1A, 1B, 3A of the Civil Procedure Act, section 19(1) of the ELC Act and Article 159(b) & (d) of the Constitution.
Whether the counterclaim amounts to intermeddling with a deceased's estate
Not established; the registered owner of Mombasa/Block XX/38 is not shown to be the parties' deceased father
The property is registered in the name of Saleh Subeya Arish, who is not a party. Although the parties appear to be brothers whose parents are deceased, the court could not assume without a death certificate that the registered owner is their father. The relationship would become clear at the merit hearing.
Legal principles established
#- The power to strike out a pleading should be used very sparingly and only where the pleading is clearly untenable
Court orders
#- 1.The application dated 17th June 2025 is without merit and is hereby dismissed
- 2.The plaintiff to bear the defendants' costs
- 3.The replying affidavit sworn 25th September 2025 filed without leave and out of time is expunged from the court record
- Jurisdiction invoked
- Sections 1A, 1B, 3A of the Civil Procedure Act, section 19(1) of the Environment and Land Court Act No. 19 of 2011, and Article 159(b) & (d) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Subeya v Subeya & another (Land Case E002 of 2024) [2025] KEELC 7343 (KLR)", Case Analysis (2025). Land Case E002 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7343/eng@2025-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.