Kinyua v Ranguma & 3 others (Environment and Land Case E512 of 2024) [2026] KEELC 5161 (KLR)

RULING (In respect of the 4th Defendant’s application dated 4/11/2025) 1. The Ruling herein is in respect to the 4th Defendant’s application dated 4/11/2025, which is said to be anchored in the provisions of Order 2 Rule 15 of the Civil Procedure Rules. The Applicant prays, principally, for orders that; a. The Plaint dated 9/12/2024 be and is hereby struck out or dismissed. b. Costs of this application be provided for. 2. The application is based on a single ground, namely that the Plaintiff’s case is a clear abuse of the court process by presenting conflicting evidence. The application is further supported by the affidavit of George Titi Kadu, the 4th Defendant/Applicant, of even date. The Applicant avers that there are ongoing proceedings between the same parties before the Rent Restriction Tribunal, Case No. E592 of 2023, in which he is an Interested Party. The 4th Defendant notes that the Plaintiff, Wilfred Murithi Kinyua, and the property known as Plot No. LR1008/16, which bears a gate marked ‘K3’, are central to the dispute. The deponent further contends that the Plaintiff has presented contradictory evidence regarding ownership of the property, as he asserts in his witness statement that he is in the process of acquiring title, yet has concurrently submitted a Certificate of Title for the same property before the Tribunal. In his view, this constitutes a clear abuse of process. 3. The Plaintiff opposed the application by grounds of opposition dated 28/11/2025. The Plaintiff argues that the application is incompetent and fatally defective for failing to cite the specific sub-rule under Order 2, rule 15 of the Civil Procedure Rules in support of the prayer to strike out the Plaintiff's suit. Further, the grounds now advanced are res judicata, having been previously raised by the 4th Defendant in a Preliminary ELC.E512.2024-NBI 2R of 7

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Objection dated 7/1/2025, which was dismissed in this Court's ruling of 30/6/2025. That, in any event, the rival claims to title and possession over Land Reference Number 1008/16 Miotoni/Warai Road, Karen, as well as the alleged inconsistency in the Plaintiff's evidence, are contested questions of fact that properly lie within the province of a full trial on the merits and are not amenable to summary determination. Consequently, the Motion is further impugned as an abuse of the court's process. 4. In support of the application, the 1st and 3rd Defendants filed grounds in an affirmation dated 3/7/2026. The 1st and 3rd Defendants support the assertion by the 4th Defendant that the Plaintiff has never held ownership or possession of the suit property; that the property is lawfully vested in the 3rd Defendant; and that the 4th Defendant has been the legal proprietor since 26/7/2004 pursuant to a valid Sale Agreement. The 3rd Defendant avers that, during its tenure of ownership, it has rented out the suit property to a series of tenants over the last 20 years and has never entered into any business or venture with the Plaintiff herein, nor has it granted him possession of the suit property. It is further asserted that the Plaintiff’s own pleadings admit a lack of title, rendering the claim for mandatory orders of vacant possession fundamentally untenable and frivolous. 5. With reference to the parallel proceedings instituted by the Plaintiff before the Rent Restriction Tribunal, in which similar ownership claims were advanced and disputed, the 1st and 3rd Defendants argue that the Plaintiff’s assertions are inconsistent and contradictory before competent forums. This conduct, it is argued, amounts to material non-disclosure, misrepresentation, and an attempt to secure a favourable forum, all of which render the suit scandalous, vexatious, and an unnecessary drain on judicial resources. Consequently, the 1st and 3rd Defendants pray that the application be allowed and the suit struck out in its entirety. 6. Pursuant to this Court’s directions, issued by consent of the parties on 6/7/2026, the application was canvassed by way of written submissions. ELC.E512.2024-NBI 3R of 7

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Only the 4th Defendant/Applicant complied and filed his submissions dated 8/7/2026. The other parties did not file any submissions. 7. In his submissions, the Applicant reiterates his arguments set out in the supporting affidavit. He maintains that the Applicant has adduced contradictory evidence regarding the registration status of the suit property, amounting to an abuse of the process, and that the instant suit ought to be struck out. 8. Having considered the Application, the Affidavit and the grounds in support of the application, the grounds of opposition thereto as well as the Applicant’s submissions, the issues for determination are; a. Whether the suit should be struck out as sought in the application. b. Who should bear the costs of the application. 9. The Court’s jurisdiction to strike out pleadings is found under Order 2 Rule 15 of the Civil Procedure Rules which provides thus; Rule 15. (1) At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that— a. It discloses no reasonable cause of action or defence in law; or b. It is scandalous, frivolous or vexatious; or c. It may prejudice, embarrass or delay the fair trial of the action; or d. It is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be. 10. The test for striking out pleadings is as reiterated in the case of Kenyariri –vs- Double Win Company Ltd and 2 others [2024] KEELC 1609 (KLR), the court held that; “It is trite that striking out pleadings is a drastic remedy that should only be resorted to where a pleading is a complete sham.” 11. The Court of Appeal in Blue Shield Insurance Company Ltd –vs- Joseph Mboya Oguttu [2009] eKLR restated this principle thus; ELC.E512.2024-NBI 4R of 7

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“The principles guiding the Court when considering such an application which seeks striking out of a pleading is now well settled. Madan J.A. (as he then was) in his judgment in the case of D.T. Dobie and Company (Kenya) Ltd vs Muchina (1982) KLR 1 discussed the issue at length and although what was before him was an application under Order 6 Rule 13 (1) (a) which was seeking striking out a plaint on grounds that it did not disclose a reasonable cause of action against the defendant, he nonetheless dealt with broad principles which in effect covered all other aspects where striking out a pleading or part of a pleading is sought. It was held in that case inter alia as follows: -“The power to strike out should be exercised after the Court has considered all facts, but it must not embark on the merits of the case itself as this is solely reserved for the trial Judge. On an application to strike out pleadings, no opinion should be expressed as this would prejudice fair trial and would restrict the freedom of the trial Judge in disposing the case.”We too would not express our opinion on certain aspects of the matter before us. In that judgment, the learned Judge quoted Dankwerts L.J in the case of Cail Zeiss Stiftung vs Ranjuer & Keeler Ltd and others (No.3) (1970) ChpD 506, where the Lord Justice said: -“The power to strike out any pleading or any part of a pleading under this rule is not mandatory; but permissive and confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the offending pleading.”We may add that like Madan J.A, said, the power to strike out a pleading which ends in driving a party from the judgment seat should be used very sparingly and only in cases where the pleading is shown to be clearly untenable.” 12. The rationale is that striking out a pleading and exercising the powers for summary procedure are draconian, coercive and drastic. Therefore, striking out a pleading must be done with tremendous caution, because a litigant should never be driven from the seat of justice without being ELC.E512.2024-NBI 5R of 7

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heard. See Prafulla Enterprises Ltd v Norlake Investments Ltd, Kisumu High Court Civil Case No. 145 of 1997; LLR 7412 (HCK). The court must therefore exercise the powers to strike out a pleading or case with the greatest care and circumspection and only in the clearest of cases should the court strike out a pleading. 13. I have read the Plaint dated 9/12/2024 and the Ruling by Justice M.D. Mwangi delivered on 30/6/2025. In summary, the Plaintiff’s claim, as set out in the Plaint, is that he is an executor of the estate of the late Christiana Merina Vendana, alias Emilia Alfano Vendana. He avers that he inherited the suit land pursuant to the confirmation of grant issued on 16/5/2022 in Succession Cause HCCC No 941 of 2021, and that he is in the process of procuring a title for the suit land. He asserts that he is the lawful owner and was in possession of the suit property until 3/12/2024, when the 1st and 2nd Defendants, accompanied by armed men, entered the property, dispossessed the Plaintiff, and trespassed thereon. He further asserts that the 1st Defendant, purportedly acting through a nonexistent entity named Eugefreight Tours and Safaris Limited, whose name is only proximate to that of the 3rd Defendant, advances a competing claim to title and possession despite having no valid or lawful interest. 14. It is on that basis that the Plaintiff seeks a prohibitory injunction to restrain the Defendants from entering or remaining on the property, a mandatory injunction compelling to vacate the property and deliver vacant possession to the Plaintiff, general damages for trespass, cancellation of any parallel title held by the Defendants or their agents, and costs of the suit. 15. By and large, it is trite law that striking out a suit is a draconian and drastic step in litigation, which should be resorted to sparingly, as a last resort. It is only where a pleading cannot be salvaged by an amendment that the court will utilise this procedure; hence the use of the word “May”, meaning it is discretionary. ELC.E512.2024-NBI 6R of 7

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16. From the pleadings herein, I find that there are issues of both law and fact arising from the pleadings in this case which cannot be summarily determined by an application. Evidence should be tendered and examined at trial. The Applicant has failed to demonstrate that the plaintiffs’ suit is scandalous, frivolous, vexatious or an abuse of the court process. 17. Consequently, the Court holds and finds that the Applicant has not satisfied this Court that the orders sought are warranted, and therefore the Applicant is not entitled to the prayers sought. 18. The upshot of the foregoing is that the Notice of Motion Application dated 4/11/2025 is not merited and is dismissed. Costs of the application shall abide the outcome of the suit. 19. It is so ordered. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 6TH DAY OF AUGUST 2026 VIA MICROSOFT TEAMS. J. G. KEMEI JUDGE Delivered Online in the presence of: 1. N/A for the Plaintiff 2. Ms Maina for the 1st & 3rd Defendants 3. N/A for the 2nd Defendant 4. The 4th Defendant is present in person 5. CA- Mr Amos ELC.E512.2024-NBI 7R of 7

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