[2019] KEELC 2441 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KERUGOYA

ELC CASE NO. 29 OF 2015

JOHN MURIITHI TITUS & 27 OTHERS...............................PLAINTIFFS/APPLICANTS

VERSUS

THE MINISTER FOR LANDS

KIRINYAGA COUNTY....................................................1ST DEFENDANT/RESPONDENT

THE SECRETARY KIRINYAGA COUNTY.................2ND DEFENDANT/RESPONDENT

RULING

The applicants who are also the plaintiffs in this case have brought the application dated 1st November 2016 seeking to strike the defendants defence dated 28th July 2015 and judgment be entered accordingly. The application is based on grounds that on 18th March 2015, they filed summons against the respondents. On 7th August 2015, they filed a request for interlocutory judgment but was not presented to the Judge’s Chambers until 10th August 2015 when the respondents filed their defence. They also contend that their advocate on record has on several occasions invited the respondents advocates and even served them mention notices to appear in Court but they never appeared even a single day. The applicants further contend that it is now over two (2) years since the suit was filed and the respondents have never filed or complied with Order II C.P.A. It is also alleged that the respondents’ advocates have not shown interest in this matter despite being served with several notices to attend Court for taking directions.

In reply to the applicant’s averments, the respondents stated that they have also filed a list of issues for determination dated 6th October 2016. The respondents also stated that they filed defence to the plaintiffs claim and that the question of interlocutory judgment does not arise. They also contend that their lawyers have always attended Court as and when they are required to represent them in this case. The respondents further stated that as public bodies, with administrative Constitutional transition from the defunct Municipal Councils to County Government, it has been an uphill task for them to obtain all necessary documents that they shall rely on during the pending trial and that they are interested in the suit and want to see the same reach its logical conclusion and further that the predicaments faced in tracing the relevant documents should not be construed to mean otherwise. In conclusion, the respondents urged that the application is incompetent as failure to comply with Order II C.P.A is not one of the elements of striking out a pleading. The respondent stated that the applicants have not furnished concise ground or sufficient reasons to warrant the exercise of the Court’s discretion in their favour as required under Order 2 Rule 15 C.P.R.

I have considered the submissions by the counsels and the applicable law. Order 2 Rule 15 C.P.R states as follows:

1. At any stage, of the proceedings the Court may order to be struck out or amend any pleading on the ground that:

(a) It discloses no reasonable cause of action or defect in law; or

(b) It is scandalous, frivolous or vexatious; or

(c) It may prejudice, embarrass or delay the fair trial of the action; or

(d) It is otherwise an abuse of the process of the Court,

and may order that the suit be stayed or dismissed or judgment to be entered accordingly as the case may be.

2. No evidence shall be admissible on an application under sub-rule 1 (a) but the application shall state concisely the grounds on which it is made.

In the case of Delphis Bank Ltd Vs Caneland Limited (2014) e K.L.R, the Court of Appeal dealt with both the issue of striking out a defence and summary judgment and stated as follows:

“The leading local case on interpretation of Rule 13 of Order VI of the Civil Procedure Rules on which the application striking the defences was based is perhaps D.T. Dobie & Company (Kenya) Ltd Vs Muchina which counsel for the Applicant referred to us. In the case, Madan J.A. (as he then was), opined in an obiter dictum that:

“the power to strike out should be exercised only after the Court has considered all the facts, but it must not embark on the merits of the case itself as this is solely reserved for the trial Judge. On an application to strike out pleadings, no opinion should be expressed as this would prejudice the freedom of the trial Judge in disposing the case .….

And in Provincial Insurance Company of East Africa Limited now known as U.A.P Provincial Insurance Limited Vs Lenny M. Kivuti (Civil Appeal No. 216 of 1996) (unreported), this Court again stated:

“In an application for summary judgment even one triable issue, if bonafide, would entitle the defendant to have unconditional leave to defend”.

Lastly in Kenya Trade Combine Ltd Vs M. Shah (Civil Appeal No. 193 of 1999) (unreported), this Court said:

“In a matter of this nature, all a defendant is supposed to show is that a defence on record raises triable issues which ought to go for trial. We should hasten to add that in this respect a defence which raises triable issues does not mean a defence that must succeed”.

The discretionary power of the Court to give summary judgment “ought to be applied in plain and obvious cases where the action is one which cannot succeed or is in some way an abuse of the process of the Court”. ..… It was in D.T. Dobie & Co. Ltd Vs Muchina (supra) 1982 K.L.R that this Court differently constituted) held that:

“as the power to strike out pleadings is exercised without the Court being fully informed on the merits of the case, through discovery and oral evidence, it should be used sparingly and cautiously”.

Where there is no plausible defence and it is plain that the defence is a sham or cannot be sustained, it would be pointless to put the parties through a trial process that would inflate costs to the disadvantage of the debtor and delay delivery of justice to the prejudice of the claimant”.

Again in G.B.M. Kariuki Vs Nation Media Group Ltd & 3 others (2012) e K.L.R, G.V. Odunga Judge in dismissing the application to have the suit struck out stated:

“In the Co-operative Merchant Bank Ltd Vs George Fredrick Wekesa Civil Appeal No. 54 of 1999, the Court of Appeal stated as follows:

“Striking out a pleading is a draconian act, which may be resorted to, in plain cases ……….. Whether or not a case is plain is a matter of fact….... Since oral evidence would be necessary to disprove what either of the parties says, the appellants defence cannot be said to present a plain case of a frivolous, scandalous, vexatious defence, or one likely to prejudice, embarrass or delay the expeditious disposal of the respondents action or which is otherwise and abuse of the process of the Court ……….

A Court may only strike out pleadings where they disclose no semblance of a cause of action or defence and are incurable by amendment”.

The applicants in this case filed their plaint on the basis that the 1st respondent had caused the 2nd respondent to register caution and restrictions against the register of parcels of land at Kutus in Nyangati area owned by rightful proprietors. They prayed that the respondents be ordered to lift and remove all restrictions and other encumbrances registered against the said parcels of land.

In their defence, the respondents claim that if indeed restrictions and/or cautions have been registered against the applicants land then the same was justifiably placed since the properties were procedurally and legally acquired compulsorily for public purposes and that the applicants were duly compensated either in cash or in kind with alternative parcels of land. The respondents’ averments in my view raises triable issues whereby evidence is required to be adduced to determine the veracity of the allegations raised in the defence. I therefore find that it will not be just to dismiss the defence but to all the parties to approach the sit of judgment rather than dismissing their case summarily.

In the final analysis, I dismiss the application dated 1st November 2016. The costs shall abide the event.

READ and SIGNED in open Court at Kerugoya this 28th day of June, 2019.

E.C. CHERONO

ELC JUDGE

28TH JUNE, 2019

In the presence of:

1. Ms Muthoni holding brief for Mr.Kariithi for Plaintiff

2. Defendant/Advocate – absent

3. Court clerk Mbogo – present