[2019] KEELC 3321 (KLR)
The court found that the application to strike out the plaintiff's suit was misplaced because there are triable issues that can only be resolved at a full hearing. The existence of a sale agreement, the payment of Kshs. 690,000 by the plaintiff, and the admitted outstanding balance of Kshs. 465,000 owed by the...
Source-derived case information.
- Citation
- [2019] KEELC 3321 (KLR)
- Parties
- Plaintiff: Loice Jeruto Koech; Defendant: Charles Omariba
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 885 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Strike Out Suit
- Outcome
- application dismissed
- Legal Topics
- Striking Out Suit, Sale of Land, Estate of Deceased, Triable Issues
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Loice Jeruto Koech
Plaintiff
Charles Omariba
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether the plaintiff's suit should be struck out on the ground that the suit land belongs to the estate of a deceased person.
- 2 Whether the defendant had capacity to transfer the suit land to the plaintiff.
- 3 Whether there are triable issues that warrant a full hearing.
Ratio Decidendi
The court found that the application to strike out the plaintiff's suit was misplaced because there are triable issues that can only be resolved at a full hearing. The existence of a sale agreement, the payment of Kshs. 690,000 by the plaintiff, and the admitted outstanding balance of Kshs. 465,000 owed by the defendant to the plaintiff are substantive matters that require examination at trial. Striking out the suit at this interlocutory stage would preclude the court from addressing these substantive issues. Therefore, the application was dismissed with costs to the plaintiff.
Court Disposition
application dismissed
Orders
- The defendant's application dated 26th March 2018 to strike out the suit is dismissed.
- Costs of the application are awarded to the plaintiff.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND AT ELDORET
ELC NO 885 OF 2012
LOICE JERUTO KOECH............PLAINTIFF
VERSUS
CHARLES OMARIBA............DEFENDANT
RULING
This ruling is in respect of an application dated 26th March 2018 by the defendant/applicant seeking that the plaintiff’s suit be struck out on the following grounds:
a) That the suit land does not belong to the defendant.
b) That the defendant is incapable of transferring land to the plaintiff.
c) That the suit land is part of the estate of Jelagat Singoei
Counsel agreed to canvass the application by way of written submissions which were filed.
Defendant/Applicant’s Submission
Counsel submitted on the genesis of the suit whereby the defendant and the plaintiff entered into a sale agreement and the plaintiff paid Kshs. 690,000/. That the defendant refunded Kshs. 90,000/ leaving a balance of kshs, 600,000/ and rescinded the agreement with an outstanding balance to the plaintiff of Kshs. 465,000/
Counsel submitted that a party cannot give that which he does not have as the suit land belongs to a deceased person. Counsel therefore urged the court to strike out the suit.
Plaintiff/Respondent’s Submission
Counsel for the plaintiff in response to the application submitted that the issue that the suit land is part of the estate of a deceased person does not arise as the applicant bought the suit land from one Joshua Kipleting Arap Too who had earlier bought the same from the late Jelagat Singoei. That the respondent bought the land from the applicant defendant.
It was Counsel’s further submission that the deceased sold the land on 5th September 2000 and forwarded all the documents to the defunct Eldoret Municipal Council hence the applicant should not be allowed to hide behind the estate yet he had no contract with the deceased. Counsel also submitted that there is no nexus between the estate of the deceased and the applicant. That the issues raised in the application are triable issues which should wait for the full trial of the case. He urged the court to dismiss the application with costs to the plaintiff.
Analysis and determination
This application is for striking out of the plaintiff’s suit on the ground that the suit land belongs to the estate of a deceased person. From the submissions of Counsel for the defendant/applicant and the brief background to the suit, it is clear that there are triable issues that can only be dealt with during the full hearing of the suit.
Counsel has submitted that the defendant and the plaintiff entered into a sale agreement for the suit land whereby the plaintiff paid the defendant Kshs. 690,000/. It is admitted that the defendant still owes the plaintiff Kshs. 465,000/. How are we supposed to deal with these issues when the court strikes out the plaintiff’s suit at this interlocutory stage?
I find that this application is misplaced and is therefore dismissed with costs to the plaintiff.
Dated and delivered at Eldoret this 23rd day of May, 2019
M.A. ODENY
JUDGE
RULING READin open court in the presence of Mr.Oduor holding brief for Momanyi for Defendant/Applicant and Miss.Bonareri holding brief for Melly for Plaintiff/Respondent.
MR. Mwelem – Court Assistant