Kahiga v Kahiga & 4 others (Environment & Land Case 1 of 2021) [2023] KEELC 452 (KLR)

3. James Kihungi Kahiga (the plaintifi) is opposed to the application. In his replying afidavit sworn on May 17, 2022, the plaintifi avers that he has established a substantial cause of action against the 5th defendant. 4. The plaintifi avers that the 5th defendant is part of the fraudulent syndicate as regards the illegal succession done by the 3rd defendant who purportedly caused land parcel Kabaru/Ngonde Block 6/ Ngatha/40 to be registered jointly in the names of the 1st, 2nd and 3rd defendants. The plaintifi further avers that the 1st, 2nd and 3rd defendants together connived to illegally own, sub-divide and transfer the said parcel of land and thereupon to encroach upon the Plaintifi’s intended share of 2 acres of the land. 5. I have carefully perused and considered both the application and the response thereto. I have similarly perused and considered the submissions filed herein by the learned counsel representing the 5th defendant. I was unable to find any submissions filed by the Plaintifi. 6. By the application before me, the 5th defendant has urged the court to strike out the suit as against himself. It is the 5th defendant’s case that the suit as filed discloses no cause of action against him and that the claim made by the plaintifi against him is unfounded and his continued presence in the suit is unnecessary and without any basis. 7. The plaintifi on the other hand accuses the 5th defendant of being part of a fraudulent syndicate that caused the suit property to be registered jointly in the names of the 1st, 2nd and 3rd defendants. It is accordingly the plaintifi’s case that he has established a substantive cause of action against the 5th defendant and that he is therefore, a necessary party in these proceedings. 9. As was stated by Madan JA in DT Dobie and Company Kenya Limited v Joseph Mbaria Muchina and Another (1980) eKLR: “ No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.” 10. I have looked at the pleadings filed herein by both the plaintifi and the defendants. While indeed it is true that there is no prayer made by the plaintifi specifically against the 1st, 2nd, 3rd and 5th defendants, it was apparent to me that the grant of the orders sought to be issued against the Land Registrar Nyeri were likely to afiect the 5Th defendant. 11. While the plaintifi’s pleadings could certainly do with some panel beating, it was clear that he accuses the 1st, 2nd and 3rd defendants of proceeding to evict him from the suit property, proceeding to subdivide the same and transferring a portion thereof to the 5th defendant. That being the case, if the court were to order restoration of the original boundaries of the parcels of land as they were in January, 2021 when the Plaintifi contends he was evicted therefrom, it is clear that those orders would afiect the 5th defendant who is said to have purchased his portion some 4 months later on May 24, 2021. 12. As has been stated time and again, striking out a pleading is a draconian act, which may only be resorted to in plain cases. Unless the defendant can demonstrate shortly and conclusively that the plaintifi’s claim is bound to fail or is otherwise objectionable as an abuse of the court process, it must be allowed to proceed to trial. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/452/eng@2023-02-02 2

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13. In the circumstances herein I was not persuaded that there was any basis to strike out the suit as against the 5th defendant. It follows that I did not find any merit in the chamber summons dated February 24, 2022. The same is dismissed with costs to the plaintifi. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT NYERI THIS 2ND DAY OF FEBRUARY, 2023. J. O. Olola JUDGE In the presence of: Mr. Macharia holding brief for Gacheru for the 5th Defendant Mr. James Kahiga – the Plaintifi present in person No appearance for the other Defendants Court assistant - Kendi https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/452/eng@2023-02-02 3

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