[2010] KEHC 1260 (KLR)
The court held that the plaintiff's claim, alleging fraudulent and illegal registration of land in the 3rd defendant's name, discloses a reasonable cause of action and is not frivolous or vexatious, even though the 3rd defendant is the registered proprietor and enjoys statutory protection under section 23(1) of the...
Source-derived case information.
- Citation
- [2010] KEHC 1260 (KLR)
- Parties
- Plaintiff: Daudi Mwiu Kiilu; Defendant: Syokimau Farm Ltd; Defendant: David Nzomo Nzele; Defendant: Katunge Musau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1033 of 2006
- Procedural Posture
- Civil Case / Interlocutory Application Ruling
- Outcome
- Application partly allowed; injunction granted; application to strike out plaint declined; costs reserved.
- Legal Topics
- Land Ownership Dispute, Fraudulent Registration, Interlocutory Injunctions, Counterclaim Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daudi Mwiu Kiilu
Plaintiff
Syokimau Farm Ltd
Defendant
David Nzomo Nzele
Defendant
Katunge Musau
Defendant
Procedural Posture
Civil Case / Interlocutory Application Ruling
Legal Issues
- 1 Whether the plaintiff has a reasonable cause of action in alleging fraudulent and illegal registration of land in the 3rd defendant's name.
- 2 Whether the 3rd defendant is entitled to interlocutory judgment on the counterclaim due to the plaintiff's failure to defend.
- 3 Whether the application to strike out the plaint under Order 6 Rule 13(1)(b),(c),(d) of the Civil Procedure Rules should be granted.
Ratio Decidendi
The court held that the plaintiff's claim, alleging fraudulent and illegal registration of land in the 3rd defendant's name, discloses a reasonable cause of action and is not frivolous or vexatious, even though the 3rd defendant is the registered proprietor and enjoys statutory protection under section 23(1) of the Registration of Titles Act. Therefore, the application to strike out the plaint under Order 6 Rule 13(1)(b),(c),(d) of the Civil Procedure Rules was declined. However, since the 3rd defendant has obtained interlocutory judgment on the counterclaim due to the plaintiff's failure to defend, the 3rd defendant is entitled to set the matter down for formal proof. The court declined...
Court Disposition
Application partly allowed; injunction granted; application to strike out plaint declined; costs reserved.
Orders
- A restraining order of injunction is issued against the plaintiff in terms of prayer 2 of the motion dated 1st September, 2009.
- The application to strike out the plaint under Order 6 Rule 13(1)(b),(c),(d) of the Civil Procedure Rules is declined.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1033 of 2006
DAUDI MWIU KIILU ………………………………..…..PLAINTIFF
V E R S U S
SYOKIMAU FARM LTD …………………….……..1ST DEFENDANT
DAVID NZOMO NZELE ………………….……….2ND DEFENDANT
KATUNGE MUSAU…………………………..……..3RD DEFENDANT
RU L I N G
Now that the 3rd Defendant has an interlocutory judgment against the Plaintiff for failing to defend the counterclaim, she should set down her suit for formal proof.
In so far as the Plaintiff alleges in the plaint that he is the owner of the land in dispute and that the land was fraudulently and illegally registered in the name of the 3rd Defendant, he has a reasonable cause of action.The mere fact that the 3rd Defendant is the registered proprietor and has the protection of section 23 (1) of the Registration of Titles Act (Cap.281) does not make the Plaintiff’s claim, however improbable, a frivolous or vexatious one.The request under Order 6 Rule 13 (1) (b), (c)and(d)of theCivil Procedure Rules, is therefore declined.
Prayer 3 of the motion dated1st September, 2009seeks mandatory orders which would be final in nature.Such orders will await the final resolution of the dispute.
In the meantime, however, and because the 3rd Defendant is the registered proprietor of the disputed land who has a default judgment against the Plaintiff, a restraining order of injunction is issued against the Plaintiff in terms of prayer 2 of the motion.
To that extent, therefore, the application dated1st September, 2009and filed on2nd September, 2009is allowed.Costs will await the resolution of the case.
DATED AND DELIVERED AT
NAIROBI
THIS 5TH DAY OF OCTOBER 2010
A.O. MUCHELULE
J U D G E