Evanson Jidraph Kamau Waitiki v Kenya Power & Lighting Company Ltd [2017] KECA 526 (KLR)
The bottom line
#Kenya's Court of Appeal restored a landowner's case against Kenya Power, ruling that striking out a suit requires firm evidence, not speculation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge properly exercised her discretion in striking out the appellant's suit under Order 2 rule 15(1)(d) of the Civil Procedure Rules
- 2.Whether the respondent discharged the burden of proving that the appellant's suit was an abuse of the court process on the ground that it had been compromised by the Government's purchase of the suit land
- 3.Whether the learned Judge erred in shifting the burden of proof to the appellant to produce and prove the terms of the sale agreement with the Government
Key legal issues
#Principles governing striking out of pleadings under Order 2 rule 15(1)(d)
Striking out is drastic, is to be resorted to sparingly and only as a last resort, and an application for it does not permit the court to conduct a mini-trial.
The Court restated the settled principles from D.T. Dobie and other authorities: courts should aim at sustaining rather than terminating suits, must exercise tremendous caution, will not interfere with a trial judge's discretion absent error of principle or plain wrongness, and will strike out only in plain and clearest cases. Because the application was brought specifically under rule 15(1)(d), the respondent was required to present evidence that the suit was an abuse of process.
Burden of proof regarding alleged compromise of the suit by the Government settlement
The respondent, as the party asserting that the Government's payment compromised the trespass claim, bore the burden of proving it; the appellant bore no burden at the application stage to disclose the settlement terms.
Applying Sections 107 and 108 of the Evidence Act, the Court held that the respondent's grounds amounted only to supposition and speculation that the compensation 'may then indirectly settle this suit'. There was no assertion that the action was actually compromised. A drastic remedy like striking out must have a firm foundation, and the alleged scope of the settlement was an issue for trial, not summary determination.
Interference with the trial judge's discretion
The trial judge improperly exercised her discretion by conducting a mini-trial without evidence, shifting the burden of proof, and driving the appellant from the seat of justice on an issue that was not plain and obvious.
The Court noted that the seven-page ruling made no reference to the well-known principles for striking out pleadings and cited none of the authorities. By going into the merits of the dispute, erroneously allocating the burden of proof to the appellant, and striking out the suit on an issue that was not plain and obvious, the judge erred on principle, justifying appellate interference.
What constitutes abuse of court process
Abuse of court process depends on the circumstances of each case; there can be no general definition, but it generally involves use of court process for purposes extraneous to the pursuit of truth.
The Court adopted the description in Muchanga Investments: abuse occurs where a party uses the judicial process to the irritation and annoyance of an opponent and the efficient administration of justice, in proceedings wanting in bona fides, frivolous, vexatious or oppressive. Here, the appellant's claim for trespass and breach of statutory duty could not be characterised as such an abuse on the material before the court.
Legal principles established
#- An application for striking out pleadings brought specifically under Order 2 rule 15(1)(d) requires the applicant to present evidence showing the suit is an abuse of court process; striking out is a drastic remedy of last resort and does not involve a mini-trial.
- The burden of proving that a suit is an abuse of the court process, including that it was compromised by a settlement, lies on the party seeking striking out; a trial judge may not shift that burden to the plaintiff to disclose the terms of a settlement at the interlocutory stage.
- A trial judge errs by determining contested issues such as the scope of a settlement agreement without hearing evidence; whether compensation under a settlement covered a pending claim is a matter for trial.
Court orders
#- 1.The appeal is allowed with costs
- 2.The order to strike out the suit issued on 13th July, 2016 is set aside
- 3.The appellant's suit in ELRC Case No. 346 of 2014 is restored
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Mombasa
- ELRC Case No. 346 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal against a ruling of the Environment and Land Court (implicit statutory appellate jurisdiction; no specific constitutional or statutory provision is cited in the judgment)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For those reasons the appeal succeeds and is accordingly allowed with costs. The order to strike out the suit issued on 13th July, 2016 is set aside and the suit hereby restored.
because of its far-reaching and drastic nature, the remedy of striking out pleadings is resorted to very sparingly and only as a remedy of a last resort
Because it was the respondent who sought to have the suit struck out, the burden to prove that it was an abuse of the court process lay squarely on it.
There was no assertion that the action against the respondent was compromised by the settlement but only a supposition and a desire based on speculation.
The learned Judge, in the entire seven page ruling made no reference the well-known principles for the striking out of pleadings as enunciated in numerous decided cases, none of which was cited by her.
Issues in the judgment
#The judgment states the appeal was allowed 'with costs' but does not expressly address the trial court's order that each party bear their own respective costs, leaving ambiguity as to costs in the subordinate court.
The coram lists the judges as MAKHANDIA, OUKO & M'INOTI, but the signature block renders the first judge's name as 'ASIKE - MAKHANDIA', creating a minor inconsistency in name rendering.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Musyoki & another v Dave & 5 others (Land Case E038 of 2023) [2026] KEELC 5059 (KLR)[2026] KEELC 5059 (KLR)29 Jul 2026
- Njoroge & 2 others v Sikuta (Environment and Land Case 170 of 2016) [2025] KEELC 7973 (KLR)[2025] KEELC 7973 (KLR)19 Nov 2025applied
Cite this brief
#Cite this brief
Caselaw, "Evanson Jidraph Kamau Waitiki v Kenya Power & Lighting Company Ltd [2017] KECA 526 (KLR)", Case Analysis (2017). Civil Appeal No. 73 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/526/eng@2017-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.