Kakuzi Plc v Kamicha & 7 others
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the suit could be struck out summarily before pleadings close
No - the motion raised disputed facts (ownership, lapse of lease, occupation) that must be proved by evidence, and the Defendants had not even filed their defences despite directions of 22-7-2025 and 4-3-2026
The court held the motion smacked of a preliminary objection but rested on disputed facts not yet ascertained. The Defendants had failed for over a year to file defences, witness statements and documents as directed, stalling expeditious resolution contrary to the overriding objective in Section 1A of the Civil Procedure Act. A defence cannot be determined summarily where the defendants hesitate to plead their case fully.
Whether striking out would violate the Plaintiff's Article 50(1) right to a fair hearing
Yes - striking out would deny the Plaintiff a fair hearing and its day in court; the suit discloses a cause of action with prima facie valid lease and uncontroverted evidence of grazing and water pipeline use
The court found the plaintiff entitled to its day in court, which comes only if parties comply with procedural law. The replying affidavit showed a prima facie valid lease, uncontroverted evidence of grazing and a critical water pipeline, and legitimate expectation of lease renewal. Striking out a suit where defendants have filed no evidence is unjust; the striking-out power must be exercised sparingly in the era of entrenched fair-hearing rights.
Whether the 2nd, 3rd and 4th Defendants bear any burden of proof
They bear no legal burden of proof, but as civil litigants they carry an evidential burden to adduce sufficient evidence to establish their averments and rebut the plaintiff's case on a balance of probabilities
Distinguishing civil from criminal proceedings, the court held the defendants have no legal burden of proof but must back their pleadings with evidence or risk the plaintiff proving its case on a balance of probabilities. Their 30-year occupation claim was vague - no parcel identified, no ancestors named, no family genealogy given - so they will bear the evidential burden at trial.
Legal principles established
#- A suit cannot be struck out summarily on disputed facts that require proof by evidence; striking out is a draconian discretionary power to be exercised sparingly, especially under the constitutional right to a fair hearing.
- Parties are under a duty to assist the court and comply with its directions and the statutory timelines for filing defences; failure to do so breaches the overriding objective.
Court orders
#- 1.The notice of preliminary objection/motion dated 6-5-2026 is dismissed with costs.
- Jurisdiction invoked
- Article 162(2) of the Constitution (Environment and Land Court jurisdiction over land disputes); motion brought under Orders 2 rule 15 and 51 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, Section 30 of the Land Registration Act and Article 40 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kakuzi Plc v Kamicha & 7 others", Case Analysis (2026). Environment and Land Case E044 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5727/eng@2026-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.