[2015] KEELC 600 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENTAL AND LAND COURT

AT NAIROBI

HCCC NO. 1159 OF 2000

MICHAEL KAMAU & OTHERS.....................................PLAINTIFF

VERSUS

LUKAS KIMEU MUTEVU & 31 OTHERS.................DEFENDANTS

RULING

The Application

The Defendants herein filed an application by way of an Amended Notice of Motion dated 11th December 2013, seeking orders that the Plaintiff’s Amended Plaint dated 25th August 2000 be struck out for being incompetent as the same does not disclose any reasonable cause of action, is frivolous, vexatious and otherwise an abuse of the process of court. The Defendants further prayed that judgment be entered in their favour on the Counterclaim and that costs be provided for.

The main grounds for the application are that the Defendants should be registered proprietors of Land Parcel MAKUYU/KAMBITI/BLOCK 1/1-54, 61 & 62 (hereinafter referred to as “the suit properties”) within the meaning of section 38 of the Limitation of Actions Act, and that the Plaintiffs who brought this suit on behalf of others did not seek the Court’s leave before filing a representative suit. Further, that the Plaintiffs’ claim does not specify which parcels of land are occupied by the Defendants thus the entire Plaint herein is incurably defective.

The 1st Defendant in a supporting affidavit and further affidavit sworn on 11th December 2013 and 4th December 2014 respectively explained that he is the Chairman of Muthanga Farm situated on the suit properties, and on which over 1000 settlers have been cultivating since the year 1964. Further, that the Defendants who reside on the land were not notified of the charges in the title and that that the Plaintiffs’ suit is mala fide and an attempt to disregard the accrued interests of the Defendants in the suit properties arising out of adverse possession.

The deponent reiterated that the Plaintiffs instituted a representative suit against the Defendants for alleged trespass on the said suit land, and that the said representative suit was instituted without seeking leave of this Court thus the same is incompetent, defective and its continued prosecution is an abuse of the process of the Court. He also denied that the Plaintiffs are bona fide owners of the suit properties, as they obtained their titles fraudulently and are reluctant to set this case down for hearing.

The Response

The Plaintiffs opposed the said application in a replying affidavit sworn by the 1st Plaintiff on 7th November 2014, wherein he stated that the Plaintiffs are the bona fide registered owners of the suit properties which has been invaded by the Defendants without any lawful cause of excuse. Further, that the fact that the said Defendants have unlawfully occupied the said parcels of land is a reasonable cause of action which should be adjudicated by the court.

The deponent also averred that the only way the Court can come to a determination on whether the suit herein has merit is by awarding the parties a chance to be heard and present their evidence, and that the Plaintiffs’ suit or pleadings can be cured by way of amendment and it is therefore misleading to allege that the same is incurably defective.

The Issues and Determination.

The parties were directed to file written submissions on the Defendants’ application. The Defendants’ counsel filed submissions dated 13th October 2014, while the Plaintiffs’ counsel filed submissions dated 27th November 2014. Both counsel reiterated the arguments made in the pleadings filed by the parties, and cited various judicial authorities in support of their respective cases.

I have carefully considered the pleadings filed herein, and submissions made by the Plaintiff and Defendants. The issue for determination is whether the Amended Plaint filed herein by the Plaintiffs should be struck out for reasons that it does not disclose a cause of action. The Notice of Motion by the Defendants is brought pursuant to the provisions of Order 2 Rule 15 (1) of the Civil Procedure Rules, which provides as follows:

“At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—

(a) it discloses no reasonable cause of action or defence in law; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the court,

and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be. “

It is also notable that under Order 2 Rule 15(2) of the Civil Procedure Rules it is provided that no evidence shall be admissible on an application under subrule (1) (a), but the application shall state concisely the grounds on which it is made. It should therefore be evident from the pleadings being sought to be struck out that they disclose no reasonable cause in the absence of adducing any further evidence. The Defendant on the contrary in their application for striking out the Amended Plaint filed herein for not disclosing a reasonable cause of action have sought to raise grounds that can only be verified by way of evidence being adduced by the parties, particularly as regards their respective entitlements to the suit properties.

In addition, it is settled law that the power of the Court to strike out pleadings should be used sparingly and cautiously, as it is exercised without the court being fully informed on the merits of the case through discovery and oral evidence. This was stated In D.T. Dobie & Company (Kenya) Ltd. v. Muchina [1982] KLR 1 at p. 9 by Madan, J.A.as follows:-

“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.”

The overriding principle to be considered in an application for striking out of a pleading is whether it raises any triable issues. In the present suit, the Plaintiffs allege that they are the owners of the suit properties and that the Defendants have invaded their land. The Defendants claim ownership by way of adverse possession. These are clearly triable issues that can only be determined after a full hearing.

Lastly, on the issue as to whether the Plaintiffs have met the requirements of filing a representative suit on behalf of the persons they state they are representing, the applicable law is Order I Rule 13 of the Civil Procedure Rules which states as follows:-

“(1) Where there are more plaintiffs than one, any one or more of them may be authorised by any other of them to appear, plead or act for such other in any proceedings, and in like manner, where there are more defendants than one, any one or more of them may be authorised by any other of them to appear, plead or act for such other in any proceedings.

(2) The authority shall be in writing signed by the party giving it and shall be filed in the case.”

This Court notes that even if this requirement may not have been met by the Plaintiffs, it is not sufficient to render the entire suit herein bad in law and beyond resuscitation to justify its striking out. In D.T.Dobie & Co. (K) Ltd vs Muchina[1982] K.L.R.1,Honourable Madan J.A. held that the court should aim at sustaining rather than terminating a suit, and that a suit should only be struck out if it is so weak that it is beyond redemption and incurable by amendment.

It is therefore my finding in this regard that it would not be in the interest of justice to strike out this suit while curative measures can be undertaken in the form of directions and/or leave given by this Court as to the filing of the necessary documents to remedy the situation of the Plaintiffs’ representation. Furthermore, Article 159(2) of the Constitution now enjoins Courts to dispense justice without undue regard to procedural technicalities.

The Defendants Amended Notice of Motion dated 11th December 2013 therefore fails for the foregoing reasons. The costs of the said Notice of Motion shall be in the cause.

Orders accordingly.

Dated, signed and delivered in open court at Nairobi this ___18th____ day of ____February____, 2015.

P. NYAMWEYA

JUDGE