[2016] KEELC 1129 (KLR)
The court found that although the Plaintiff relied on the District Surveyor's report indicating encroachment, the report had not been tested by cross-examination and the Defendant had requested a joint survey to clarify the boundary issue. The Defence and Counterclaim could not be deemed frivolous or vexatious at...
Source-derived case information.
- Citation
- [2016] KEELC 1129 (KLR)
- Parties
- Plaintiff: Azzuri Limited; Defendant: Pink Properties Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 3 of 2015
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Striking Out Defence, Encroachment, Survey Evidence, Counterclaim, Triable Issues
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Azzuri Limited
Plaintiff
Pink Properties Limited
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the Defendant's Defence and Counterclaim should be struck out as vexatious and prejudicial to fair trial.
- 2 Whether the Plaintiff is entitled to judgment on the basis of the unchallenged surveyor's report.
- 3 Whether the Defence raises triable issues warranting a full trial.
Ratio Decidendi
The court found that although the Plaintiff relied on the District Surveyor's report indicating encroachment, the report had not been tested by cross-examination and the Defendant had requested a joint survey to clarify the boundary issue. The Defence and Counterclaim could not be deemed frivolous or vexatious at this interlocutory stage because they raised triable issues that should be determined at trial. Striking out the Defence would violate the principles of natural justice and deny the Defendant an opportunity to challenge the evidence. Therefore, the Plaintiff's application to strike out the Defence and Counterclaim was dismissed as unmeritorious.
Court Disposition
application dismissed
Orders
- The Plaintiff's application dated 23rd June 2015 is dismissed with costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO.3 OF 2015
AZZURI LIMITED.......................................PLAINTIFF/APPLICANT
=VERSUS=
PINK PROPERTIES LIMITED...........................DEFENDANT/RESPONDENTS
R U L I N G
1. What is before me is the Application by the Plaintiff dated 23rd June, 2015 in which it is seeking for the following orders:-
(a) THAT this Honourable court be pleased to strike out the Defendant's Defence and counterclaim dated 12th January 2015.
(b) That the Honourbale Court be further pleased to enter Judgment for the Plaintiff against the Defendant as prayed in the Plaint.
(c) That the costs of this Application be provided for.
2. The Application is premised on the grounds that the Defence and Counter-claim is vexatious and aimed at prejudicing, embarrassing and delaying the fair trail of the suit; that it is clear from the surveyor's report that plot number Chembe/Kibabamshe/272 has encroached on Chembe/Kibabamshe/365 and that the Defence has not challenged the surveyor's report.
3. The Defendant has opposed the Application by filing Grounds of Opposition and a Replying Affidavit.
4. It is the Defendant's case that the Application has ignored the basic principles of natural justice and that the Defence raises triable issues.
5. I have considered the written submissions by both the Plaintiff's and the Defendant's advocate.
6. The Plaintiff has annexed on its Affidavit the Registered Index Map (RIM) in respect of the plots within that area together with the sub-division plan of plot number 356. The Plaintiff has also annexed the District Surveyor's report.
7. The report of the District Surveyor shows the Defendant's wall has encroached into the Plaintiff's plot covering an area of 0. 224 Ha (approximately ½ an acre).
8. The District Surveyor's report has not been challenged by way of cross examination. The fact that the surveyor has stated that the Defendant's parcel of land has encroached on a public road and the Plaintiff's parcel of land is not conclusive until that evidence is tested at trial.
9. In deed, the Defendant has filed an Application dated 21st August, 2015 requesting that a joint survey in respect to the two parcels of land be carried out to ascertain whether indeed the two plots overlap each other. That, in my view, is a request that this court should consider before concluding whether indeed the Defendant's Defence is a sham or not, after the surveyors evidence have been tested.
10. For those reasons, I find and hold that the Plaintiff's Application dated 23rd June 2015 is unmeritorious and I dismiss it with costs.
Dated and delivered in Malindi this 26th day of February,2016.
O. A. Angote
Judge