Timothy Kiogora Mbae v Jediel Mbae M'Muthamia

entitlement in the suit land. At the time of the formal gifting, he was in occupation of the 3½ acre portion developed it. Through the and he had formal gifting agreement, the defendant undertook to excise the 3½ acre portion and convey it to him. He added that he had developed a permanent residence on the 3½ acre portion and he had undertaken substantial developments on the land based on the formal land gift agreement dated 27/8/2020. The plaintiff stated that in 2025, the defendant expressed an intention to dispose the suit land, including the 3½ acre portion where his [the plaintiff’s] home stood. Among other reliefs, he sought a declaration that the defendant held the 3½ acre portion in trust for him. 3. Vide a ruling dated 19/5/2026 disposing the plaintiff’s application dated 4/2/2026, this court issued a temporary injunctive order restraining the defendant against selling, transferring, charging, dealing with or interfering with the 3½ acre portion that he had gifted the plaintiff in August 2020. 4. While the matter was pending delivery of the ruling on the application dated 4/2/2026, the defendant brought a notice of motion dated 22/4/2026 seeking an order striking out this suit. The said application was canvassed subsequent to the ruling of 19/5/2026 and now falls for determination through this ruling. The application is opposed. 5. The application was premised on the grounds outlined in the motion and in the applicant’s affidavit dated 22/4/2026. It was canvassed through the applicant’s undated written submissions filed on 13/5/2026. The case of the applicant is ELCL CASE NO. E006 OF 2026 – Ruling Page 2

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that he is the registered co-owner of land parcel number Abogeta/Lower Kiungone/105 [the suit land], which he coowns in equal shares with his late brother, Eliphaz Riungu. The plaintiff is his son. The plaintiff brought this suit claiming a 3½ acre portion of the applicant’s ½ share. The plaintiff lacks locus standi to initiate and maintain the suit. Secondly, the plaintiff has failed to demonstrate any legally recognizable proprietory or equitable interest in the suit land. Thirdly, the suit is grounded on a mere expectation of a gift and does not disclose a reasonable cause of action by the plaintiff. The defendant further contends that the suit is founded on a land gift agreement dated 27/8/2020 which is unregistered; does not comply with the mandatory provisions of the law; and is therefore, invalid, unenforceable and void. He adds that the plaintiff has not established any element of constructive trust, proprietary estoppel or enforceable contractual right. 6. The plaintiff/respondent opposed the application through a replying affidavit dated 29/4/2026 and written submissions of even date. The case of the plaintiff/respondent is that, vide a land gift agreement dated 27/8/2020, the defendant gifted him 3½ acres out of his portion of the suit land. He contends that the gifting created a recognizable interest in the suit land. He has developed the 3 ½ acre gifted to him. It is the case of the plaintiff that the suit raises triable issues for determination by the court upon trial. 7. The court has considered the application; the response to the application; and the submissions tendered on the application. The key issue that fall for determination in the application is ELCL CASE NO. E006 OF 2026 – Ruling Page 3

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whether this suit does not disclose a reasonable cause of action against the defendant that would warrant a trial hearing. 8. The Blacks Law Dictionary, Tenth Edition, defines a cause of action as: “A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” 9. In Sultan Hasham Lalji & 2 others v Ahmed Hasham Lalji & 4 others [2014] KECA 440 (KLR), the Court of Appeal stated the following about what constitutes a reasonable cause of action: “We emphasize the words “reasonable cause of action” to underscore the fact that a pleading will be said to disclose a reasonable cause of action if it exhibits some chance of success when the allegations in the plaint or defence only are considered.” 10. In DT Dobie & Company (Kenya) Ltd v Muchina & another [1980] KECA 3 (KLR), the Court of Appeal outlined the following approach which guides our courts when considering a plea for an order striking out a suit on the ground of failure to disclose a reasonable cause of action:“In point of law, and consequently in the view of a Court of justice, every cause of action is a reasonable cause. But; obviously some meaning ELCL CASE NO. E006 OF 2026 – Ruling Page 4

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must be assigned to the term 'reasonable'..... a pleading will not be struck out unless it is demurrable and something worse than demurrable." per Chitty J. in Republic of Peru v. Peruvian Guano Company, 36 Ch.Div. 489 at pp. 495 and 496. Per Lord Justice Swinfen Eady in Moore v. Lawson and Another (supra) at p. 419.18 It cannot be doubted that the court has an inherent jurisdiction to dismiss an action which is an abuse of the process of the court. It is a jurisdiction which ought to be very sparingly exercised. and only in exceptional cases. I do not think its exercise would be justified merely because the story told in the pleadings was highly improbable, and one which it was difficult to believe could be proved". per Lord Herschell in Lawrence v. Lord Norreys, 15. A.C. 210 at p. 219. "The summary remedy which has been applied to this action is only applied in plain and obvious cases when the action is one which cannot succeed or is in some way an abuse of the process of the court." per Danckwerts, L.J. in Nagle v. Fielden (1966) 2 Q.B.D. 633 at p. 646. 'It is well settled that a statement of claim should not be struck out and the plaintiff driven from the judgment seat unless the case is unarguable. Accordingly, it is necessary to consider whether or not this plaintiff has an arguable case. That is ELCL CASE NO. E006 OF 2026 – Ruling Page 5

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the only question that arises on this appeal." per Salmon, L.J., ibi at p. 651.” 11. In the application under consideration, the plaintiff contends that vide a formal land gift agreement dated 27/8/2020, the defendant gifted him 3½ acres that were to be excised out of the defendant’s share [½ portion] of land parcel number Abogeta/Lower Kiungone/105. He also contends that he has developed the 3½ acre portion and he has established his family residence on it. He states that he resides on the land. The plaintiff asserts that he has acquired a crystalized interest in the 3½ acre portion arising from the formal gift and the developments. 12. On his part, the applicant contends that this suit does not disclose a reasonable cause of action against him because the land gift comprised in the formal agreement dated 27/8/2020 has not crystalized. He maintains that as long as he is alive, he remains entitled to deal with the suit land as he wishes. He further contends that the plaintiff lacks locus standi. 13. What the court understands to be the gist of the plaintiff’s claim is that the formal land gift agreement dated 27/8/2020 and the granting of exclusive possession of the 3½ acre to the plaintiff by the defendant created an overriding interest in the suit land. His case is that the defendant continued to hold title to the already gifted 3½ acre portion merely as a trustee. The question as to whether the plaintiff has acquired a recognizable overriding interest in the suit land is one that calls for a trial hearing. The question as to whether the land ELCL CASE NO. E006 OF 2026 – Ruling Page 6

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gift agreement dated 27/8/2020 and the plaintiff’s developments on the land created an overriding interest is, in my view, a triable issue. 14. It is therefore clear from the pleadings before court that the suit herein discloses a reasonable cause of action that warrants trial. Alive to the fact that the court is at this point dealing with an interlocutory application, I will refrain from making any definitive or conclusive pronouncement on the above identified issues. 15. For the above reasons, the finding of the court is that there is a reasonable cause of action disclosed in this suit. Consequently, the application dated 22/4/2026 is rejected and dismissed for lack of merit. 16. In tandem with the principle in Section 27 of the Civil Procedure Act, the defendant/applicant shall bear costs of the application. DATED, SIGNED AND DELIVERED AT MERU THIS 21ST DAY OF SEPTEMBER, 2026. B M EBOSO [MR] ELC JUDGE In the Presence of: Mr Mutuma holding brief for Ms Riungu for the Plaintiff. Mr Karanja for the Interested Party Mr Jediel Mbae – Defendant – Present in Person Court Assistant – Mr. E. Tupet ELCL CASE NO. E006 OF 2026 – Ruling Page 7

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