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ELCDismissedNot stated in the excerpt (Notice of Motion dated 13th August 2013)· [2013] KEELC 6 (KLR)

Sunflag Property Investment v Kenya Railways Co-Operation [2013] KEELC 6 (KLR)

Environment and Land Court
27 November 2013
PNP. Nyamweya
1,605 words in judgment
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The bottom line

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The Environment and Land Court refused to fast-track a landowner's possession claim because competing titles over the same parcel must be resolved at a full trial.

What this practically means

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Executive summary

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The Plaintiff moved the court by Notice of Motion dated 13th August 2013 seeking striking out of the Defendant's Defence and Counterclaim, an order that it was entitled to possession of L.R. No. 25805 (Grant I.R. 90589), and deferral of damages for demolition and trespass to formal proof. The Plaintiff claimed to be an innocent purchaser for value of the suit property, bought through a chain of transfers originating from a 2002 Grant, and argued that the Defendant's defence concerned a different parcel, L.R. No. 209/19708, granted to it in 2010. The Defendant, through its Senior Legal Officer Stanley Gitari, traced its allocation of the Makadara Marshalling Yard, its subdivision into seven parcels, and contended that the Plaintiff's title overlapped its subdivision L.R. 209/19708 and was one of those recommended for cancellation by the Director of Survey due to overlapping surveys. The court framed two issues: whether the Defence and Counterclaim should be struck out under Order 2 Rule 15(1), and whether summary judgment should issue under Order 36 Rules 1 and 2. Applying D.T. Dobie v Muchina, the court held the strike-out power must be used sparingly and that the Defence raised triable issues, notably which of two competing titles to the same parcel was valid. Following Gurbaksh Singh & Sons v Njiri Emporium, the court held summary judgment was unavailable where a detailed defence had been filed. The application was dismissed with costs in the cause.

Key legal issues

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01

Striking out of pleadings under Order 2 Rule 15(1)

Holding

The Defence and Counterclaim raises triable issues and cannot be struck out

Reasoning

The court applied Order 2 Rule 15(1) and the D.T. Dobie principle that striking-out power must be used sparingly since it is exercised without full evidence on the merits. The Defendant had set out a detailed basis for its entitlement and alleged the Plaintiff's title was illegal and infringed its rights. The conflict of two titles over the same parcel constitutes a triable issue suitable for full trial.

p. 3
02

Availability of summary judgment under Order 36 Rules 1 and 2

Holding

Summary judgment cannot issue where a detailed defence and counterclaim is on record

Reasoning

Relying on Gurbaksh Singh & Sons Limited v Njiri Emporium Ltd, the court held that where a defendant has filed a detailed defence, the court cannot ignore it and proceed summarily. The Defendant's Defence and Counterclaim raised triable issues concerning competing titles, so the Plaintiff's claim for possession was not amenable to the summary procedure.

p. 4

Legal principles established

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  • The power to strike out pleadings should be used sparingly and cautiously, and a pleading raising triable issues cannot be struck out
  • Summary judgment is not available where a detailed defence has been filed

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 13th August 2013 is dismissed
  2. 2.Costs of the Notice of Motion to be in the cause
Jurisdiction invoked
Original civil jurisdiction; application under Order 2 Rule 15(1) and Order 36 Rules 1 and 2 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Sunflag Property Investment v Kenya Railways Co-Operation [2013] KEELC 6 (KLR)", Case Analysis (2013). Not stated in the excerpt (Notice of Motion dated 13th August 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/6/eng@2013-11-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.