[2000] KEHC 480 (KLR)
The court held that summary judgment is not appropriate in cases involving vacant possession of land where there is confusion over the identity of the property and serious factual disputes regarding ownership. The presence of conflicting claims about which parcels of land are in issue, as well as allegations...
Source-derived case information.
- Citation
- [2000] KEHC 480 (KLR)
- Parties
- Plaintiff: Joan Nduta Karanja Bashi; Defendant: Thindigua Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1355 of 1999
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Defence and Enter Summary Judgment
- Outcome
- application dismissed
- Legal Topics
- Summary Judgment, Vacant Possession, Striking Out Defence, Ownership Dispute, Land Registry Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joan Nduta Karanja Bashi
Plaintiff
Thindigua Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Defence and Enter Summary Judgment
Legal Issues
- 1 Whether summary judgment can be entered in a suit for vacant possession of land.
- 2 Whether the defendant's defence should be struck out given the confusion over the parcels of land involved.
- 3 Whether affidavit evidence is sufficient to determine ownership of the disputed property.
Ratio Decidendi
The court held that summary judgment is not appropriate in cases involving vacant possession of land where there is confusion over the identity of the property and serious factual disputes regarding ownership. The presence of conflicting claims about which parcels of land are in issue, as well as allegations regarding the authority of advocates involved in the transaction, necessitate a full trial with oral and documentary evidence. The court found that the application for summary judgment was misconceived and that the issues raised could not be resolved on affidavit evidence alone. Therefore, the application to strike out the defence and enter judgment for the plaintiff was dismissed.
Court Disposition
application dismissed
Orders
- The application to strike out the defence and enter summary judgment is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CIVIL CASE 1355 OF 99
JOAN NDUTA KARANJA BASHI........................PLAINTIFF
V
THINDIGUA LTD.................................................DEFENDANT
RULING
This application seeks to have the defendant’s defence struck out and judgment entered for the plaintiff as prayed in the plaint. Considering that the suit is for vacant possession of a piece of land, it is obvious that the application is misconceived. In my view, there is no provision in the Civil Procedure Rules for summary judgment in a case of this nature. Apart from the foregoing, there is considerable confusion as to what the dispute is all about. It appears from the pleadings and also from submissions by both learned counsels that two parcels of land are involved in this matter namely L. R. No. 76/396 and L. R. No. 76/397.
There is therefore a very strong possibility that either or both parties is/are confused as to what piece of land they occupy on the ground. There are also serious allegations that the advocates who purported to represent the defendant in the sale of the property namely Onesmus Githinji and Company Advocates had no instructions to act for the defendant. Given all those complications, it becomes more than clear that this is not a matter that can be disposed of through affidavit evidence. A lot more evidence than what has been presented to the court is required to establish who the rightful owner of property is. Some of that evidence will have to include certified documents from the relevant Land Registry indicating the current status of the property/properties.
It may also be necessary to have the evidence of one Mr. Daniel Musyoka of Onesmus Githinji & Co. Advocates, to testify on the matter. In view of what is stated above, the application must fail. According the application is hereby dismissed. Given the grounds upon which the application is dismissed, I do not think it will be proper to award costs of this application to either party. Accordingly I make no order with regard to costs.