[1996] KECA 51 (KLR)
The Court of Appeal found that the High Court erred in striking out the plaint on the basis of adverse possession when the pleadings did not support such a claim. The plaint was based on a trust, and there was no prayer for adverse possession. The reference to adverse possession in paragraph six of the plaint did...
Source-derived case information.
- Citation
- [1996] KECA 51 (KLR)
- Parties
- Appellant: Lucy Wangechi Ndirangu; Respondent: Reuben Igwanya Kiruthu; Respondent: Dedan Ndirangu Kiruthu; Respondent: Simon Gachuhi Kiruthu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 214 of 1995
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- JE Gicheru, RO Kwach
- Legal Topics
- Adverse Possession, Trusts in Land, Striking Out Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Wangechi Ndirangu
Appellant
Reuben Igwanya Kiruthu
Respondent
Dedan Ndirangu Kiruthu
Respondent
Simon Gachuhi Kiruthu
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the High Court erred in striking out the plaint on the basis of adverse possession.
- 2 Whether the pleadings disclosed a claim based on trust rather than adverse possession.
- 3 Whether the respondent was entitled to have paragraph six of the plaint struck out.
Ratio Decidendi
The Court of Appeal found that the High Court erred in striking out the plaint on the basis of adverse possession when the pleadings did not support such a claim. The plaint was based on a trust, and there was no prayer for adverse possession. The reference to adverse possession in paragraph six of the plaint did not convert the claim into one for adverse possession. The learned judge misconceived the pleadings and was in error in striking out the plaint. The proper course would have been to strike out the offending paragraph if necessary, not the entire plaint. The appeal was therefore allowed, the order striking out the plaint was set aside, and the suit was remitted to the High Court...
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The High Court order striking out the plaint is set aside.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NYERI Civil Appeal 214 of 1995
LUCY WANGECHI NDIRANGU...................................................APPELLANT
AND
REUBEN IGWANYA KIRUTHU........................................1ST RESPONDENT
DEDAN NDIRANGU KIRUTHU........................................2ND RESPONDENT
SIMON GACHUHI KIRUTHU...........................................3RD RESPONDENT
(Appeal from the ruling and Order of the High Court of Kenya in Nyeri (Lady Justice
M.A. Ang’awa) dated the 30th March, 1995
IN
H.C.C.C. NO. 176 OF 1987
***************************
JUDGMENT OF THE COURT
Were there some lawful way by which this court could allow appeals summarily, we would have allowed this appeal in a summary way. There was absolutely no claim based on adverse possession; the concept of adverse possession was touched on in paragraph six of the plaint but no prayer was made based on adverse possession. The “green card” the learned Judge talks about was not part of the pleadings before her. At the most what the respondent was entitled to was to apply that paragraph six of the plaint be struck out. We are ourselves satisfied that the claim was based on a trust and the learned judge wholly misconceived the pleading and was in error in striking out the plaint. We allow this appeal, set aside the Judge’s order striking out the plaint and remit the suit to the High Court to hear and determine it according to law. We give costs of this appeal and the application in the High Court to the appellant. Those shall be our orders.
Dated and elivered at Nyeri this 16th day of May, 1996
J.E. GICHERU
...........................
JUDGE OF APPEAL
R.O. KWACH
........................
JUDGE OF APPEAL
R.S.C. OMOLO
..............................
JUDGE OFAPPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR