[2008] KEHC 276 (KLR)
The court found that the first defendant's application to strike out the suit was without merit. Despite the first defendant's admission of the plaintiffs' claim, he had not fulfilled his obligation to transfer the land back to the first plaintiff, and his explanation for failing to do so was deemed an excuse rather...
Source-derived case information.
- Citation
- [2008] KEHC 276 (KLR)
- Parties
- Plaintiff: Mary Kigo Mungai; Plaintiff: Francis Mwaura Kuria; Defendant: Samuel Mburu Kiratu; Defendant: Daniel Nganga Kiratu
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 445 of 2000
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Suit
- Outcome
- application dismissed with costs to the plaintiffs
- Judges
- DK Maraga
- Legal Topics
- Striking Out of Pleadings, Abuse of Court Process, Admissions, Counterclaim, Costs, Frivolous and Vexatious Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Kigo Mungai
Plaintiff
Francis Mwaura Kuria
Plaintiff
Samuel Mburu Kiratu
Defendant
Daniel Nganga Kiratu
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether the suit against the first defendant should be struck out as frivolous, vexatious, or an abuse of court process.
- 2 Whether the first defendant's admission of the plaintiffs' claim renders the suit unnecessary for hearing.
- 3 Whether the existence of a counterclaim by the second defendant precludes striking out the suit.
Ratio Decidendi
The court found that the first defendant's application to strike out the suit was without merit. Despite the first defendant's admission of the plaintiffs' claim, he had not fulfilled his obligation to transfer the land back to the first plaintiff, and his explanation for failing to do so was deemed an excuse rather than a valid reason. Furthermore, the existence of a counterclaim by the second defendant meant that substantive issues remained for determination. The court concluded that the application was itself frivolous, vexatious, and an abuse of the court process, and therefore dismissed it with costs to the plaintiffs.
Court Disposition
application dismissed with costs to the plaintiffs
Orders
- The first defendant's application to strike out the suit is dismissed.
- Costs of the application are awarded to the plaintiffs.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Civil Case 445 of 2000
MARY KIGO MUNGAI………..……………….1ST PLAINTIFF
FRANCIS MWAURA KURIA……...…….…..2ND PLAINTIFF
VERSUS
SAMUEL MBURU KIRATU……..………..1ST DEFENDANT
DANIEL NGANGA KIRATU………..……..2ND DEFENDANT
RULING
By his notice of motion dated 16th May 2008 and filed on 5th June 2008 the first defendant seeks under Section 3A of the Civil Procedure Act and Order 6 Rule 13(a), (b) and (d) of the Civil Procedure Rules the striking out of this suit as against him on the ground that even his admission of the plaintiffs' claim there is nothing in this suit to be taken to hearing. In the circumstances he claims that the plaintiffs' claim against him is frivolous vexatious and otherwise an abuse of the process of the court and should be struck out.
Having perused the pleadings in this case and the second plaintiff’s replying affidavit I am satisfied that if anything it is the first defendant’s application which is frivolous, vexatious and otherwise an abuse of the court process. The first defendant admits having sold and transferred a portion of his land to the first plaintiff. He also admits that to bail him out of the contempt of court charge against him the first plaintiff retransferred that portion to him. After he purged his contempt he has not transferred the portion back to her thus forcing the plaintiffs to file this suit. True he has admitted the plaintiffs' claim both in his defence and in the affidavit in support of this application. He claims that the reason why he has not transferred the land back to the first plaintiff is because of the caution she has lodged against the title. I find that to be an excuse rather than the reason why she has transferred the land back to the first plaintiff.
Besides the plaintiffs’ claim there is the second defendant’s counter claim from which the first defendant cannot be allowed to run away. In the circumstances this application has absolutely no merit and the same is hereby dismissed with costs to the plaintiffs.
DATED and delivered at Nakuru this 19th day of November, 2008.
D. K. MARAGA
JUDGE