[2012] KEHC 1779 (KLR)
The court found that the Plaintiff had sold the land to the Defendant, received full payment, and signed the transfer. The Defendant was in possession and held the title. The Plaintiff did not allege fraud or misrepresentation, nor did he provide evidence of any agreement with the original owner, Teresia Kangondu...
Source-derived case information.
- Citation
- [2012] KEHC 1779 (KLR)
- Parties
- Respondent: Kinyua Gachoki; Applicant: Eusebia Njoki Ngari
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 89 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion to Strike Out Plaint
- Outcome
- Plaintiff's suit struck out with costs to the Defendant.
- Legal Topics
- Striking Out Pleadings, Cause of Action, Sale of Land, Title to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kinyua Gachoki
Respondent
Eusebia Njoki Ngari
Applicant
Procedural Posture
Civil Appeal / Ruling on Notice of Motion to Strike Out Plaint
Legal Issues
- 1 Whether the plaint discloses a reasonable cause of action against the Defendant.
- 2 Whether the Plaintiff is entitled to have the Defendant's title cancelled and the land registered in his name.
- 3 Whether the Plaintiff's suit is vexatious and an abuse of court process.
Ratio Decidendi
The court found that the Plaintiff had sold the land to the Defendant, received full payment, and signed the transfer. The Defendant was in possession and held the title. The Plaintiff did not allege fraud or misrepresentation, nor did he provide evidence of any agreement with the original owner, Teresia Kangondu Erasto, requiring the land to be transferred to him first. The court concluded that the plaint did not disclose any cause of action against the Defendant and that the Plaintiff was misusing the court process for personal gain. Consequently, the suit was struck out with costs to the Defendant.
Court Disposition
Plaintiff's suit struck out with costs to the Defendant.
Orders
- The Plaintiff's suit is struck out with costs to the Defendant.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
High Court at Embu
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KINYUA GACHOKI....................................................................................................PLAINTIFF/RESPONDENT
VERSUS
EUSEBIA NJOKI NGARI..........................................................................................DEFENDANT/APPLICANT
R U L I N G
This is the Notice of Motion dated 15th October 2011 brought under section 3A and 96 Civil Procedure Act for orders that the Plaintiff's suit be struck out with costs on the grounds that is vexatious and annoying to the Defendant. And that it does not raise a credible and or reasonable issue as to constitute a cause of action known in Law. The application is supported by the Applicant's affidavit sworn on 14/10/2011. She reiterates the grounds and avers that the pleadings do not disclose any cause of action.
In his replying affidavit the Respondent says that he sold 1. 21 hectares of land to the Defendant and not 1. 51 hectares. Section 95 Civil Procedure Act is not applicable in the case.
I have perused the plaint herein and in it the Plaintiff does not deny selling land to the Defendant and he was paid the full amount. And that one Teresia Kangondu Erasto ought to have transferred the land to him and he transfers the land to the Defendant. But Teresia transferred it direct to the Defendant. He therefore asks the Court to cancel the title and have the same registered in the name of the Plaintiff.
The Defendant has filed a defence and counterclaim. She says she has title and is staying on the land. She wants the Court to declare that the land is hers. There is an agreement showing there was an agreement of sale of land by the Plaintiff to the Defendant who was fully paid. The land was in the name of Teresia Kangondu Erasto. If the Plaintiff had a separate agreement with Teresia about the land first being transferred to him there is nothing to show that. In any event even if there was one then his claim would be against Teresia Kagondu and not the Defendant. There is an annexture showing that the earlier agreement was cancelled. This annexture is alleged to have been drawn by Mr. Githinji Karuri advocate. The construction of that document and even the English in it does not portray the work of an advocate.
I find that the plaint does not disclose any cause of action against the Defendant herein. The Plaintiff is misusing the due process of the law for his own personal gain. The Plaintiff sold the land to the Defendant, and signed for the transfer. The Defendant is in possession and has documents. He is not alleging fraud and misrepresentation of any kind.
The ends of justice demands that the Plaintiff's claim as filed be struck out with costs. I so order.
DATED AND DELIVERED AT EMBU THIS 26TH DAY OF SEPTEMBER 2012.
H.I. ONG'UDI
J U D G E
In the presence of;
Njue – C/c