[2015] KEELC 206 (KLR)
The court held that striking out a pleading is a drastic measure that should only be taken in the clearest of cases where the pleading is so hopeless that no amendment can cure it. In this case, the respondent averred that he bought the land in 1997 but later stated he took possession in 2002. The court found that...
Source-derived case information.
- Citation
- [2015] KEELC 206 (KLR)
- Parties
- Applicant: Michael Kibiwot Seroney; Respondent: Joseph K. M. M. Simiyu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 58 of 2012
- Procedural Posture
- Notice of Motion / Ruling on Application to Strike Out Originating Summons
- Outcome
- application dismissed with costs to the respondent
- Judges
- EO Obaga
- Legal Topics
- Adverse Possession, Striking Out Pleadings, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Kibiwot Seroney
Applicant
Joseph K. M. M. Simiyu
Respondent
Procedural Posture
Notice of Motion / Ruling on Application to Strike Out Originating Summons
Legal Issues
- 1 Whether the Originating Summons discloses a reasonable cause of action for adverse possession.
- 2 Whether the Originating Summons should be struck out for failure to meet the 12-year possession requirement.
- 3 Whether the defect in the pleadings can be cured by amendment.
Ratio Decidendi
The court held that striking out a pleading is a drastic measure that should only be taken in the clearest of cases where the pleading is so hopeless that no amendment can cure it. In this case, the respondent averred that he bought the land in 1997 but later stated he took possession in 2002. The court found that this inconsistency could be resolved by amendment rather than striking out the Originating Summons. Therefore, the application to strike out the Originating Summons was dismissed, as the defect was not so fundamental as to render the pleading incurable by amendment.
Court Disposition
application dismissed with costs to the respondent
Orders
- The applicant's application to strike out the Originating Summons is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 58 OF 2012
JOSEPH K. M. M. SIMIYU…...........................…...................... PLAINTIFF/APPLICANT
VERSUS
MICHAEL KIBIWOT SERONEY ............................... DEFENDANT/RESPONDENT
R U L I N G
The applicant herein Michael Kibiwot Seroney filed a notice of motion dated 10. 2.2015 in which he seeks orders that the respondent's Originating Summons dated 19. 4.2012 be struck out for failure to disclose a reasonable cause of action and that he be awarded costs.
The respondent had filed an Originating Summons in which he sought orders from court that he had acquired 2 acres out of the applicant's land by way of adverse possession. In the Originating Summons, the respondent had stated that he had bought the two acres vide an agreement executed on 23. 12. 2002 from a third party. The applicant therefore contends that he was not party to the said agreement and that in any case the respondent has not been in possession for a period of 12 years to entitle him to lay a claim for adverse possession.
The applicant's application was opposed through replying affidavit sworn by the respondent on 19. 6.2015 and filed in court on 22. 6.2015. The respondent contends that the Originating Summons should not be struck out as what is being complained of can be cured by an amendment.
I have gone through the applicant's application as well as the replying affidavit by the respondent. During the hearing of this application, Mr Chebii for the applicant argued that if the respondent took possession of the two acres on 23. 12. 2002 and he filed the Originating Summons on 19. 4.2012, then he had not been on the land for a period of 12 years and as such the Originating Summons does not disclose any reasonable cause of action.
Mr. Ondiekifor the respondent argued that what is being raised by the applicant is a matter which can be cured by amendment. He argued that the respondent who had been acting in person had filed an application for amendment which application was dismissed. He argued that this is a land matter which is emotive and that parties should be allowed to ventilate the issues in a hearing.
This is an application for striking out of a pleading. Striking out of a pleading is a drastic action which should be resorted to in very clear cases. In the instant case, the respondent has averred in his supporting affidavit that he bought the land in 1997. If he subsequently stated that he took possession in 2002 then this is a matter which can be sorted out through an amendment. A court can only strike out a pleading which in its face is so hopeless that no amount of amendment can breath life into it. The remedy of striking out should be granted sparingly and in the clearest of cases.
In the instant case, it is clear that the anomally can be cured by an amendment. I therefore find that this is not a case where striking out of the originating summons can be allowed. The result hereof is that the applicant's application fails. The same is dismissed with costs to the respondent.
It is so ordered.
Dated signed and delivered at Kitale on this 17th day of September 2015.
E. OBAGA
JUDGE
In the presence of Mr. Chebii for applicant and the plaintiff in person. Court Assistant - Winnie.
E. OBAGA
JUDGE
17. 9.2015