[2009] KEHC 2708 (KLR)
The court found that the plaintiff's suit raised triable issues, as evidenced by the statement of issues signed by both parties' advocates, identifying 19 issues for trial. The existence of a prior court order in Succession Cause No.44 of 1993 did not preclude the plaintiff from seeking relief if aggrieved,...
Source-derived case information.
- Citation
- [2009] KEHC 2708 (KLR)
- Parties
- Plaintiff: Hottensiah Wanjiku Njuguna; Defendant: Reuben Ndirangu Kagunya; Defendant: Simon Muhura Kagunya; Defendant: The Land Registrar, Kiambu District; Defendant: The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 181 of 2003
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Plaint
- Outcome
- application dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Striking Out of Pleadings, Triable Issues, Fraudulent Land Transfer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Hottensiah Wanjiku Njuguna
Plaintiff
Reuben Ndirangu Kagunya
Defendant
Simon Muhura Kagunya
Defendant
The Land Registrar, Kiambu District
Defendant
The Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether the plaint should be struck out as scandalous, frivolous, vexatious, or an abuse of court process.
- 2 Whether the plaintiff's claim is sustainable in light of previous court orders in Succession Cause No.44 of 1993.
- 3 Whether there are triable issues warranting a full hearing.
Ratio Decidendi
The court found that the plaintiff's suit raised triable issues, as evidenced by the statement of issues signed by both parties' advocates, identifying 19 issues for trial. The existence of a prior court order in Succession Cause No.44 of 1993 did not preclude the plaintiff from seeking relief if aggrieved, especially since she had not previously challenged the order. The court emphasized that it is preferable to sustain a suit rather than strike it out at an interlocutory stage, particularly where the subject matter is land and the pleadings are not plainly frivolous or vexatious. Accordingly, the application to strike out the plaint was dismissed, allowing the matter to proceed to full...
Court Disposition
application dismissed
Orders
- The application to strike out the plaint is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 181 of 2003
HOTTENSIAH WANJIKU NJUGUNA …....…….…..…..….. PLAINTIFF
VS.
REUBEN NDIRANGU KAGUNYA ……..……..……. 1ST DEFENDANT
SIMON MUHURA KAGUNYA ……………....……….. 2ND DEFENDANT
THE LAND REGISTRAR, KIAMBU DISTRICT .. ......3RD DEFENDANT
THE ATTORNEY GENERAL …………..………….... 4TH DEFENDANT
RULING
The plaintiff filed a suit against the defendants claiming an interest in parcel of land known as Githunguri/Kanjai/416, which she alleges was obtained by the defendants through fraudulent means.
The defendants denied the claim and specifically stated that the transfer of the land is based on a court order issued in that regard.
By an application dated 7th April 2009, the defendants moved the court to have the plaint struck out. The reasons thereof are that the plaint is scandalous, frivolous, or vexatious and that it may prejudice, embarrass and delay a fair trial of this action or otherwise is an abuse of the process of the court.
The basic ground is contained in No.4 of the said grounds which states that the acts complained of by the plaintiff in this suit were undertaken pursuant and in obedience to court orders issued by the court in Succession Cause No.44 of 1993 at Githunguri. The plaintiff has never appealed against or applied for review of the said court orders yet he participated in the said proceedings. It is those proceedings that led to the transfer of the properties herein.
It is now trite law that the plaintiff is entitled to pursue a claim in our courts even if the suit filed is weak or improbable. It is always the intention of the courts to sustain a suit rather than striking it out. The subject matter in this case is land, and I have noted and appreciate the submissions by both learned counsel. Whereas it may be true that whatever took place in respect of this parcel of land can be traced to a court order at Githunguri, which the plaintiff never challenged after its delivery, she has all the right to come to court in case she was aggrieved by the said orders.
She cannot be driven out of the seat of judgment yet her suit which is on record cannot be said to be that weak or frivolous in view of the pleadings thereof. I have also had occasion to peruse the record before me. There is on record a statement of issues dated 10th January 2007 and filed in court on 14th March 2007, signed by the then advocates for the plaintiff, the 1st and 2nd defendants. There are in all a total of 19 issues which have been identified as triable. Having signed those issues, the defendants appreciate the weight of the plaintiff’s suit and cannot be said to turn against the same and allege that the same is frivolous.
I have come to the conclusion that there being triable issues, this suit cannot be struck out. Accordingly, this application must fail. The application is therefore dismissed with costs to the plaintiff.
Dated, signed and delivered at Nairobi this 2nd July, 2009.
A. MBOGHOLI MSAGHA
JUDGE