[2016] KEHC 5395 (KLR)

[2016] KEHC 5395 (KLR)

The court found that the Plaintiff's filing of the present suit was not an abuse of process, as previous dismissals for want of prosecution do not preclude a fresh suit, provided limitation is observed. The court determined that consent of the Land Control Board was in fact obtained in 1977 for the subdivision, and...

Source-derived case information.

Citation
[2016] KEHC 5395 (KLR)
Parties
Plaintiff: Jackson Koech; Defendant: Michael Bett Siror
Court
High Court
Court Station
High Court at Kitale
Jurisdiction
Kenya
Judgment Date
27 April 2016
Case Number
Land Case 96 of 2015
Procedural Posture
Notice of Motion / Ruling on Application to Strike Out Plaint
Outcome
application dismissed with costs to the plaintiff/respondent
Judges
EO Obaga
Legal Topics
Land Control Board Consent, Limitation of Actions, Abuse of Process, Trusts in Land, Striking Out Pleadings
Source Language
english
Land and Property Civil Procedure Land Control Board Consent Limitation of Actions Abuse of Process Trusts in Land Striking Out Pleadings

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Summary, issues, holding and outcome

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Parties

Jackson Koech

Plaintiff

Michael Bett Siror

Defendant

Procedural Posture

Notice of Motion / Ruling on Application to Strike Out Plaint

Legal Issues

  1. 1 Whether the suit is an abuse of the process of the court.
  2. 2 Whether the consent of the Land Control Board was obtained for the transaction.
  3. 3 Whether the suit is statute barred under the Limitation of Actions Act.

Ratio Decidendi

The court found that the Plaintiff's filing of the present suit was not an abuse of process, as previous dismissals for want of prosecution do not preclude a fresh suit, provided limitation is observed. The court determined that consent of the Land Control Board was in fact obtained in 1977 for the subdivision, and the Plaintiff could be among the beneficiaries, even if not named individually. Regarding limitation, the court held that the Plaintiff's claim was not statute barred because he seeks a declaration of trust over land he has possessed since the arrangement, and the nature of the agreement was not a sale but a partnership allocation. The application to strike out the plaint did...

Court Disposition

application dismissed with costs to the plaintiff/respondent

Orders

  • The Defendant's application to strike out the plaint is dismissed.
  • Costs of the application are awarded to the Plaintiff/Respondent.