[2016] KEELC 1098 (KLR)

REPUBLIC OF KENYA

IN HE ENVIRONMENT AN LAND COURT AT NAKURU

ELC NO 44 OF 2014

TITUS NG’ANG’A KAMUYU …….……………….PLAINTIFF

VERSUS

JOSEPH GITAGIA MUTHEKI ….……1ST DEFENDANTS

MUTHEKI MUCHONJORU………………..2ND DEFENDANT

RULING

(Application for summary judgment and for striking out suit; Whether application for summary judgment can be made within the same application as one for striking out suit; summary judgment only applicable where there is no defence; striking out presumes a defence; clear that the two prayers cannot be made simultaneously as they are mutually exclusive; in one there must be a pleading to strike out, in the other there is no pleading; summary judgment not available where triable issue raised or where the money claim is not liquidated; claim herein being for eviction, general damages, mesne profits; summary judgment not available; application dismissed)

1. The application before me is that dated 30 July 2014 filed by the plaintiff. It is an application said to have been brought pursuant to the provisions of Order 2 Rule 15 and Order 36 Rule 1 of the Civil Procedure Rules, and Section 3A of the Civil Procedure Act, and all enabling provisions of the law. It seeks the following orders :-

1. That the defendants' defence be struck out with costs as the same may prejudice, embarrass or delay the fair trial of this case.

2. That summary judgment be entered for the plaintiff against the defendants as prayed for in the Plaint dated 20th January 1992.

3. That costs of this application be provided for.

The application is based on the following grounds :-

(a) The defence is a mere denial.

(b) The defence raises no triable issues.

(c) The decree passed in Nakuru HCCC No. 265 of 1989 decreed that the suit land the subject herein belongs to the plaintiff herein and no appeal has been lodged against the said decree.

(d) There is no defence to the plaintiff's claim.

(e) The defence filed herein may prejudice, embarrass or delay the fair trial of this matter.

(f) The annexed affidavit of George Kirumba Mbiyu.

2. No replying affidavit or grounds of opposition were filed by the defendants but I did allow counsel to address me on some legal points. I will come to these later as I feel that it is necessary to lay a bit of the background to this application.

3. This suit was commenced by way of plaint filed in January 1992 against two defendants. Probably owing to the passage of time, part of the plaint is missing but I can deduce from what is available, that the claim of the plaintiff is that in December 1991, the 1st defendant unlawfully trespassed into the plaintiff's land parcel Bahati /Engoshura Block 1/8 (the suit land) and started putting up a permanent building and grazing his cattle. In the suit, the plaintiff sought orders to be declared the proprietor of the suit property; a declaration that the 1st defendant is a trespasser; eviction of the 1st defendant from the suit premises; a permanent injunction to restrain the defendants from the suit premises; general damages for trespass; mesne profits and costs and interest.

4. Together with the suit, an application for injunction was filed to restrain the defendants from the suit property pending hearing of the suit. The supporting affidavit to that application stated inter alia, that on 30th August 1989, the plaintiff sued the 2nd defendant in Nakuru HCCC No. 265 of 1989 and judgment was obtained for specific performance of a contract dated 15 August 1983 between himself and the 2nd defendant herein relating to the land parcel Bahati/Engoshura Block 1/8 which will be noted is the suit property herein. Having won the case, the plaintiff became registered as proprietor of the suit property on 8 September 1991. It is in December 1991, that the 1st defendant who is son of the 2nd defendant, started constructing a stone building on the land and grazing cattle. It is this which precipitated the suit. A replying affidavit was filed through which the 2nd defendant deposed that on 1 September 1985, he entered into a sale agreement with his father to purchase the suit property. He deposed that he ought to be regarded as a bona fide owner without notice of other transactions. He also deposed that he has finished building the house on the property and lives in it.

5. The application for injunction was considered and allowed and the defendants restrained from the suit property.

6. On 19th February 1993, an application for contempt was filed. The defendants filed Grounds of Opposition and a Notice of Preliminary Objection to the effect that the suit herein offends the provisions of Section 6 of the Civil Procedure Act.

7. So far the defendants have not filed any defence.

8. The supporting affidavit to the subject application has been sworn by George Kirumba Mbiyu, who is counsel for the plaintiff. He had deponed inter alia that the plaintiff already has judgment against the 2nd defendant and he annexed a copy of the judgment. He was of the view that in the circumstances, the defendants cannot have a defence to the plaintiff's claim.

Mr. Matiri , learned counsel holding brief for the law firm of M/s Waruhiu , K'Owade & Ng'ang'a for the defendants submitted inter alia that Order 36 Rule 2 does permit a party to give reasons as to why he should be permitted to defend the suit. He further submitted that an application for summary judgment can only be allowed in the clearest of cases. He pointed out that the claim of the plaintiff includes a claim for general damages and mesne profits which have to be established. He was of the opinion that at the minimum these claims have to be determined through a full hearing. His submitted that what ought to be struck off is the plaint and not defence. He referred me to the preliminary objection and submitted that this case is res judicata.

9. Mr. Mbiyu for the applicant, submitted that there was an order which stayed the suit Nakuru HCCC No. 265 of 1989 and that the same has now been heard and determined. He submitted that this application had to await the determination of that suit.

10. I have considered the matter. This application has been brought pursuant to the provisions of Order 9 Rule 13 (1) which is drawn as follows :-

15. Striking out pleadings [Order 2, rule 15. ]

(1) At any stage of the proceedings the court may 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.

(2) 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.

(3) So far as applicable this rule shall apply to an originating summons and a petition.

[Order 36, rule 1. ] Summary judgment

(1) In all suits where a plaintiff seeks judgment for—

(a) a liquidated demand with or without interest; or

(b) the recovery of land, with or without a claim for rent ormesneprofits, by a landlord from a tenant whose term has expired or been determined by notice to quit or been forfeited for non-payment of rent or for breach of

covenant, or against persons claiming under such tenant or against a trespasser, where the defendant has appeared but not filed a defence the plaintiff may apply for judgment for the amount claimed, or part thereof, and interest, or for recovery of the land and rent ormesneprofits.

(2) The application shall be supported by an affidavit either of the plaintiff or of some other person who can swear positively to the facts verifying the cause of action and any amount claimed.

(3) Sufficient notice of the application shall be given to the defendant which notice shall in no case be less than seven days.

11. The application as filed has sought to rely on these two legal provisions. It will be observed that Order 2 Rule 15 relates to the striking out of pleadings whereas Order 36 Rule 1 relates to summary judgment. It follows that Order 2 Rule 15 can only be utilized where there has been a pleading filed, in this case a defence. A plain reading of Order 36 will inform one that summary judgment cannot be entered where a defence has been filed for it applies "where the defendant has appeared but not filed a defence…".On the other hand, there must be a defence for Order 2 Rule 15 to apply otherwise there will be no pleading to strike out. I cannot see how one can therefore approach a court under both Order 2 Rule 15 and Order 36 Rule 1. One has to choose which of the two provisions to use for the same are mutually exclusive. In one, Order 2 Rule 15, there must be a pleading, in the other, Order 36 Rule 1, there cannot be a pleading. Now, you cannot have a situation where you have a pleading and yet you do not. It is either you have a pleading, in this case, a defence, or you do not.

12. Having said that, although the grounds which support the application herein seem to suggest that there is a defence, the fact of the matter is that so far no defence has been filed. On that fact, Order 2 Rule 15 cannot apply. I can only therefore consider the application as one filed under Order 36 Rule 1 which is for summary judgment.

13. It is trite law that summary judgment can only be entered in the clearest of cases. In the case of Gupta vs Continental Builders Ltd (1978) KLR 809, summary judgment was granted by the High Court and on appeal it was stated as follows at p814 :-

"The first thing to say is that this was an application for summary judgment. If a defendant is able to raise a prima facie triable issue he is entitled in law to unconditional leave to defend. On the other hand, if no prima facie trialbe issue is put forward to the claim of the plaintiff, it is the duty of the Court forthwith to enter summary judgment for it is as much against natural justice to shut out without proper cause a litigant from defending himself as it is to keep a plaintiff out of his dues in a proper case. Prima facie triable issues ought to be allowed to go to trial, just as a sham or bogus defence ought to be rejected peremptorily."

14. Looking at the totality of the matter, I do not think that the case of the plaintiff is open and shut. First, I wonder why the plaintiff sued the 2nd defendant as he already has judgment in his favour in the suit Nakuru HCCC No. 265 of 1998. There is a strong scent that this suit may very well be res judicata as against the 2nd defendant. I however hesitate to make a final conclusion on the point without having been appraised of all facts. In so far as the 1st defendant is concerned, he has demonstrated in his earlier affidavits that he may raise a defence of being a bona fide purchaser for value. I cannot say that such defence is a sham and it may very well be available to the 1st defendant.

15. In addition, the claim before me is not a liquidated claim. Even the claim for general damages and mesne profits cannot be said to be liquidated. Where the claim is not liquidated, one cannot avail himself of summary judgment. This was the basis of the decision in the case of Gurbaksh Singh & Sons Limited vs Njiri Emporium Ltd (1985) KLR 695. This was a claim by a landlord for repairs of premises which the landlord claimed ought to have been done by the tenant. Summary judgment was applied for and rejected. The plaintiff appealed. On appeal, the Court of Appeal inter alia held that summary judgment should only be entered where the amount claimed has been specified, is due and payable or has been ascertained or is capable of being ascertained as a mere matter of arithmetic. That is not what is before this court.

16. In all, I do not think that this is a clear case for summary judgment. My advice to the plaintiff is that he should set his suit down for hearing.

17. I find no merit in this application and it is hereby dismissed with costs.

18. It is so ordered.

Dated, signed and delivered in open court at Nakuru this 16th day of February 2016.

MUNYAO SILA

JUDGE

ENVIRONMENT & LAND COURT

AT NAKURU

In presence of :-