[2022] KEELRC 25 (KLR)

Mwaviswa v National Land Commission (Environment & Land Case 644 of 2017) [2022] KEELRC 25 (KLR) (28 April 2022) (Ruling)

Neutral citation: [2022] KEELRC 25 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 644 of 2017

EK Wabwoto, J

April 28, 2022

Between

Gerald Mbagha Mwaviswa

Plaintiff

and

National Land Commission

Defendant

Ruling

1. This ruling is in respect of the Plaintiff’s Notice of Motion dated 17th December 2021. The application seeks the following orders:i.Spent.ii.That the Defendant’s Statement of Defence dated 8th October 2021 be struck out.iii.That summary judgement be entered for the Plaintiff against the Defendant as prayed for in the Amended Plaint.

2. The Application is premised on a single ground that the Defendant’s Statement of Defence dated 8th October 2021 does not raise any triable issues, is a sham, vexatious, frivolous and an abuse of the process of the Court. The Application is also supported by the affidavit of the Plaintiff equally sworn on 17th December 2021.

3. The Defendant was opposed to the Application and in so doing filed a Replying Affidavit sworn by Masinde Cecilia, an In-House Counsel on 2nd February 2022.

4. Pursuant to the court’s directions issued on 3rd February 2022. The court directed that the application be canvassed first by way of written submissions. Parties were granted time to file and exchange their written submissions which the court has considered. The Plaintiff filed his written submissions dated 28th February 2022 while Defendant’s submissions were dated 10th March 2022.

5. It was the Plaintiff’s submission that the defence filed herein is a sham and there were no triable issues capable of raising a defence. Counsel submitted that the defence on record offends offends the provisions of Order 7 Rule 5 of the Civil Procedure Rules and provisions of Order 2 Rule 15 of the Civil Procedure Rules. It was further submitted that the documents on record are defective and unsustainable. It was also argued that lack of a signature on the defence was not a mere technicality that could be cured by Article 159 (2) (d) of the Constitution.

6. Further relying on Section 13(1) of the Land Act 2012, it was submitted that the Defendant had an obligation to issue an allotment letter even after expiry of the lease in so far as the required conditions had been met and the land was not for public use. Citing Order 36 of the Civil Procedure Rulesthe Plaintiff reiterated the grounds under which summary judgement may be obtained and highlighted that the reliefs sought by the Plaintiff are straight forward enough to warrant a summary judgement. On this limb, Plaintiff relied on the cases of Capital Construction Co Ltd vs. National Water Conservation and Pipeline Corporation [2013]eKLR and Madison Insurance Company Limited v Augustine Kamandu Gitau[2020] eKLR.

7. Counsel concluded the Plaintiff’s submissions and urged the Court to consider the reasons advanced and the contents of their supporting affidavit and strike out the defence.

8. It was the Defendant’s contention that the defence raised serious triable issues and that before striking out the same, the Court ought to look at the defence on record and consider whether it is worth a hearing. It was submitted that whereas Order 7 Rule 5 of the Civil Procedure Rules required for specific documents to accompany the defence, the sane would only be introduced where the defendant intended to call upon witnesses. Further, being that the defence raises triable issues, the defendant must be given leave to defend as was held in the case of Postal Corporation of Kenya vs I.T.Imandar & Others [2014].

9. With regard to the Plaintiff’s entitlement to summary judgement, it was submitted that the Plaintiff had not satisfied the requirement under Order 36 Rule 1 of the Civil Procedure Rules. In relying on the case involvingJob Kilach v Nation Media Group Ltd & Others [2015] eKLR the Court was urged to ensure that no bonafide triable issues were raised by the defendant before proceeding to strike out the defence. In conclusion, it was highlighted that the application was a waste of court’s time meant to delay the hearing of the main suit.

10. I have considered the application, the supporting grounds and the written submissions of both parties. The applicant has sought for striking out the defence. The Civil Procedure rules provides that a party may at any stage of proceedings apply to strike out pleadings for disclosing no reasonable cause of action; being scandalous, frivolous or vexations; for being prejudicial or embarrassing or for being an abuse of the court process.

11. The jurisdiction to strike out pleadings is discretionary and must be exercised judicially. In Postal Corporation of Kenya v I .T Inamdar & 2 Others [2004] 1 KLR 359, the court stated that the law is now well settled that if the defence filed by a defendant raises even one bona fide triable issue, then the defendant must be given leave to defend.

12. In Olympic Escort International Co. Ltd. & 2 Others v. Parminder Singh Sandhu & Another [2009] eKLR, the court opined that a triable issue is not necessarily one that the defendant would ultimately succeed on but it need only be bona fide.

13. In The Co-operative Merchant Bank Ltd. v George Fredrick Wekesa (Civil Appeal No. 54 of 1999) the Court of Appeal stated:“Striking out a pleading is a draconian act, which may only be resorted to, in plain cases...Whether or not a case is plain is a matter of fact...Since oral evidence would be necessary to disprove what either of the parties says, the appellant’s defence cannot be said to present a plain case of a frivolous, scandalous, vexatious defence, or one likely to prejudice, embarrass or delay the expeditious disposal of the respondent’s action or which is otherwise an abuse of the process of the court”.

14. In Yaya Towers Limited v Trade Bank Limited (In Liquidation) (Civil Appeal No. 35 of 2000) the same court expressed itself thus:“A plaintiff (defendant) is entitled to pursue a claim in our courts however implausible and however improbable his chances of success. Unless the defendant (plaintiff) can demonstrate shortly and conclusively that the plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of the process of the Court, it must be allowed to proceed to trial...It cannot be doubted that the Court has inherent jurisdiction to dismiss that, which is an abuse of the process of the Court. It is a jurisdiction, which ought to be sparingly exercised and only in exceptional cases, and its exercise would not be justified merely because the story told in the pleadings was highly improbable, and one, which was difficult to believe, could be proved”.

15. Similarly, in D.T. Dobie & Company Kenya Limited v Joseph Mbaria Muchina & Another [1980] eKLR, Madan JA, stated:“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”.

16. I wish to state further that, in my reading of Order 7 Rule 5 of the Civil Procedure rules, I take note of the use of “shall” which connotes a mandatory action and/or performance by the Defendant. Moreover, the mandatory accompanying documents would only be necessary if there was a counterclaim, the matter proceeded to trial or there was reliance upon expert evidence. My perusal of defence shows neither of the given circumstances that would warrant mandatory documents to be filed. In any event, the Court is guided by the overriding oxygen principles as envisaged in Sections 1A, 1B and 3A of the Civil Procedure Act to ensure just, fair, proportionate and expeditious administration of justice. I share in the sentiments outlined in Jefitha Muchai Mwai v Peter Wangio Thuku [2015] eKLR that:“…In any event courts of law in the spirit of Article 159 of the Constitution should try as much as possible to sustain causes in court rather than striking out suits for reasons that are merely technical and curable by a simple step that does not prejudice the other party…”

17. With regard to summary judgement, Order 36 Rule 1 of the Civil Procedure Rules clearly outlines that it can only be applied where the Defendant has entered appearance but has not filed a Defence. In paragraph 1 of the defence, reference is made to the allegations in the Amended plaint. For this reason, the Plaintiff’s submissions that no averments are made would fail. I am guided by the Court of Appeal case of ICDCvs Daber Enterprises Ltd (2000) 1 EA75, where it was stated that:-“...The purpose of the proceedings in an application for Summary Judgment is to enable the plaintiff to obtain a quick Judgment where there is plainly no defence to the claim. To justify summary Judgment, the matter must be plain and obvious and where it is not plain and obvious, a party to a civil litigation is not to be deprived of his right to have his case tried by a proper trial where if necessary, there has been discovery and oral evidence subject to cross examination.”Paragraph 18.

18. From the prayers sought by the Plaintiff, there is no claim for a liquidated sum. His main claim is for recovery of land vide a declaration of him being the bonafide and beneficial owner which would require production of evidence. For these reasons, the Plaintiff does not meet the threshold for summary judgment.

19. Having perused the defendants’ defence, it is evident that striking out the same without hearing the parties would be draconian since the same discloses triable issues that can only be determined after trial. Taking all the above into account, I do not consider this to be a proper case for striking out the said defence.

20. The upshot of the above is that the Application dated 17th December 2021 is devoid of merit. It is accordingly dismissed with no orders as to costs. Matter is to be set down for hearing upon delivery of the ruling.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 28TH DAY OF APRIL, 2022E. K.WABWOTOJUDGEIn the presence of: -N/A for the Plaintiff.N/A for Defendant.Court Assistant; Caroline Nafuna.