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ELCDismissedLand Case E002 of 2024· [2025] KEELC 7343 (KLR)

Subeya v Subeya & another (Land Case E002 of 2024) [2025] KEELC 7343 (KLR)

Environment and Land Court
29 October 2025
1,845 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff moved the Environment and Land Court at Mombasa by notice of motion dated 17th June 2025 seeking to strike out the defendants' counterclaim dated 6th March 2024 and costs. The grounds were that prayers (a) and (b) of the counterclaim were time barred under section 7 of the Limitation of Actions Act; that they improperly introduced claims over parcels outside the pleadings contrary to Order 3 rule 6 of the Civil Procedure Rules; that prayers touching Mombasa/Block XX/38, registered in the name of the plaintiff's late father, amounted to intermeddling over which the court lacked jurisdiction; and that Kilifi/Roka/1380 lay outside the court's territorial jurisdiction under sections 12 and 13 of the Civil Procedure Act. It was also alleged the verifying affidavit was sworn when the deponent was out of the country. The defendant's late replying affidavit was expunged and no submissions were filed. The court framed four issues: limitation, jurisdiction, intermeddling and costs. Relying on Order 2 rule 15 and the settled principles in Yaya Towers v Trade Bank, Blue Shield Insurance v Oguttu and D.T. Dobie v Muchina, it held that striking out is a drastic step to be exercised sparingly; when the right of action accrued could not be determined without trial evidence; the relationship of the registered owner of Block XX/38 to the parties could not be assumed without a death certificate; and although Kilifi/Roka/1380 is outside the court's territorial jurisdiction, the objection was rejected in the interest of avoiding multiplicity of suits, on the strength of sections 1A, 1B, 3A of the Civil Procedure Act, section 19(1) of the ELC Act and Article 159(b) & (d) of the Constitution. The application was dismissed with costs to the defendants.

Key legal issues

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01

Whether the counterclaim is time barred under section 7 of the Limitation of Actions Act

Holding

The claim was not struck out; when the right of action accrued cannot be determined without evidence

Reasoning

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.

p. 4
02

Whether the court lacks jurisdiction over Kilifi/Roka/1380 on territorial grounds

Holding

Territorial objection rejected in exercise of the court's overriding objective, to avoid multiplicity of suits

Reasoning

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.

p. 4
03

Whether the counterclaim amounts to intermeddling with a deceased's estate

Holding

Not established; the registered owner of Mombasa/Block XX/38 is not shown to be the parties' deceased father

Reasoning

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.

p. 4

Legal principles established

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  • The power to strike out a pleading should be used very sparingly and only where the pleading is clearly untenable

Court orders

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  1. 1.The application dated 17th June 2025 is without merit and is hereby dismissed
  2. 2.The plaintiff to bear the defendants' costs
  3. 3.The replying affidavit sworn 25th September 2025 filed without leave and out of time is expunged from the court record

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Civil Procedure Rules, 2010Order 2 rule 15(1)-(3)
  • Civil Procedure Rules, 2010Order 3 rule 6
  • Civil Procedure Act, Chapter 21, Laws of KenyaSections 1A, 1B, 3A, 12, 13, 27
  • Environment and Land Court Act No. 19 of 2011Section 19(1)
  • Constitution of Kenya, 2010Article 159(b) & (d)

Cases cited (4)

  • 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 v Muchina
    (1982) KLR 1
  • Cail Zeiss Stiftung v Ranjuer & Keeler Ltd and Others (No.3)
    (1970) ChpD 506
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

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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, "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.