[2011] KEHC 479 (KLR)
The court found that the grounds advanced for striking out the originating summons—namely, res judicata, defectiveness, limitation period, and non-disclosure—are contentious and involve disputed facts. Such matters cannot be determined without a full hearing where evidence is tested. The court held that it would be...
Source-derived case information.
- Citation
- [2011] KEHC 479 (KLR)
- Parties
- Plaintiff: Florence Nyabeta Opili; Defendant: Mwasame Masindek Khakame; Defendant: Richard Wafula Masinde; Applicant: Joshua Barasa Opilly
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 16 of 2006
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Originating Summons
- Outcome
- Application to strike out originating summons dismissed; matters to be consolidated and heard together with the main suit.
- Legal Topics
- Adverse Possession, Limitation Periods, Res Judicata, Striking Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Florence Nyabeta Opili
Plaintiff
Mwasame Masindek Khakame
Defendant
Richard Wafula Masinde
Defendant
Joshua Barasa Opilly
Applicant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Originating Summons
Legal Issues
- 1 Whether the originating summons should be struck out on grounds of res judicata.
- 2 Whether the originating summons is defective or filed in contravention of the law.
- 3 Whether the limitation period of 12 years for adverse possession had elapsed.
Ratio Decidendi
The court found that the grounds advanced for striking out the originating summons—namely, res judicata, defectiveness, limitation period, and non-disclosure—are contentious and involve disputed facts. Such matters cannot be determined without a full hearing where evidence is tested. The court held that it would be more efficient and just to consolidate the application to strike out with the main application and have all issues determined together after a full hearing, rather than disposing of the matter summarily at this stage.
Court Disposition
Application to strike out originating summons dismissed; matters to be consolidated and heard together with the main suit.
Orders
- The application to strike out the originating summons is dismissed.
- The issues raised in the application for striking out shall be consolidated with those in the main application and heard together.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL SUIT NO.16 OF 2006 (O.S.)
IN THE MATTER OF LIMITATION OF ACTIONS ACT CAP 22 OF THE LAWS OF KENYA
AND
IN THE MATTER OF REGISTERED LAND ACT CAP 300 OF THE LAWS OF KENYA
BETWEEN
FLORENCE NYABETA OPILI..........................................................................................PLAINTIFF
VERSUS
MWASAME MASINDEK KHAKAME...................................................................1ST DEFENDANT
RICHARD WAFULA MASINDE...........................................................................2ND DEFENDANT
AND
JOSHUA BARASA OPILLY.................................................APPLICANT/INTENDED PLAINTIFF
R U L I N G
The Plaintiff, Florence Nyabeta Opili, the respondent in this application to strike out, filed an Originating Summons dated 1. 3.2006, seeking several reliefs including the relief that she be registered as the proprietor of a parcel of land known as L.R. No.Kimilili/Sikhendu/632, measuring 4. 5 acres under the principle of adverse possession.
After the Respondent/Defendant had filed his replying affidavit and apparently the pleadings were closed, the Respondent then filed a Chamber Summons under which he sought that the Originating Summons be truck out mainly on the grounds that the suit is Res Judicata Land Case No 25 of 2003 He also sought that the Originating Summons is defective and filed in contravention of the law. Other grounds for seeking the striking out included those that the limitation period of 12 years had not elapsed and that the plaintiffs are guilty of non-disclosure of material facts.
I have carefully perused the record of the main application and this application. Points raised for seeking to strike out the Originating Summons are clearly contentious. There is no agreement on the basic facts which would lead to the application of the law relevant to striking out. This calls for an opportunity to obtain tested facts which can only be availed after a full hearing of the main application. That is to say, it would save court’s and parties’ time and costs if the issues raised in the application for striking out, are consolidated with those in the main application and then agitated together all at the same time.
I make orders to that effect.Dated and Delivered at Bungoma this 10th day of October 2011.
D.A. ONYANCHA
J U D G E