Cyrus Namu Justin & another v Francis Muriuki Kibuchi [2017] KEELC 2091 (KLR)
The bottom line
#A Kenyan court struck out a brother's flimsy defence and ordered family land registered for all eight siblings, though each side paid its own costs.
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 defendant's defence is scandalous, frivolous, vexatious, or otherwise an abuse of the process of the Court and should be struck out under Order 2 Rule 15 of the Civil Procedure Rules
- 2.Whether judgment should be entered for the plaintiffs as prayed in the plaint, registering the suit land in the names of the named trustees
Key legal issues
#Whether the defence raises triable issues warranting trial
The defence raises no triable issues and is scandalous, frivolous, vexatious and an abuse of the process of the Court, as the defendant concedes the land belonged to the deceased and that he is merely the administrator bound by the confirmed grant
The court found the defence pleaded nothing beyond correcting the name of the deceased's parcel. The defendant admitted he was administrator of the estate, did not claim the land as his private property, and in his own affidavit expressed the wish to proceed pursuant to the confirmed grant that apportioned the land equally among the eight siblings. Counsel's own submissions conceded the plaintiffs' beneficial entitlement and the availability of the property for distribution. A defence of mere denials would only delay the expeditious disposal of the dispute.
Whether striking out the defence and entering judgment was justified despite the drastic nature of the remedy
Yes - this falls within the clearest of cases where a pleading is so hopeless that it discloses no reasonable cause of action or triable issues, justifying striking out and entry of judgment
The court applied the settled principles from DT Dobie, Fremar Construction, Crescent Construction and Job Kilach: striking out is drastic and summary judgment draconian, reserved for the clearest of cases. However, where a pleading is manifestly frivolous and vexatious and would amount to a waste of judicial time, the court is empowered to reject it in the interest of justice. The defendant's admissions in the defence, replying affidavit and his counsel's submissions placed the case squarely within that category, and Article 159(2)(b) requires that justice not be delayed.
Legal principles established
#- Striking out a pleading is a drastic remedy to be exercised with great caution and only in clear cases
- A suit ought not be summarily dismissed unless it is hopeless, discloses no reasonable cause of action, and is incurable by amendment
- Summary judgment must be granted only in the clearest of cases and a trial must be ordered where a triable issue exists
Court orders
#- 1.The defence dated 16th January 2016 and filed on 18th January 2016 is struck out
- 2.Judgment is entered for the plaintiffs that land parcel No. NGARIAMA/NGIRIAMBU/1282 be registered in the names of FRANCIS MURIUKI KIBUCHI, CYRUS NAMU JUSTIN, SERAH WANGECHI NJAGI, JEREMIA NJAGI KIBUCHI and VIOLET MUTHONI MURAGE as trustees for themselves and PURITY WAWIRA MUNENE, NESTER WANGITHI KIBUCHI and IRENE WANGUI NDEGWA
- 3.As the parties are family, each will meet their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil suit; application premised on Order 2 Rule 15(b), (c) and (d) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act
Relief refused
#Costs of the application sought by the plaintiffs
As the parties are family, the court declined to award costs against the defendant
Costs
As the parties are family, each will meet their own costs.
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.
Clearly therefore the defence herein raises no triable issues and can only be described as scandalous, frivolous, vexatious and an abuse of the process of this Court as it will only serve to delay the expeditious disposal of this dispute.
1. The defence dated 16th January 2016 and filed herein on 18th January 2016 is hereby struck out.
2. Judgment is entered for the plaintiffs that land parcel No. NGARIAMA/NGIRIAMBU/1282 be registered in the names of FRANCIS MURIUKI KIBUCHI, CYRUS NAMU JUSTIN, SERAH WANGECHI NJAGI, JEREMIA NJAGI KIBUCHI and VIOLET MUTHONI MURAGE as trustees for themselves and PURITY WAWIRA MUNENE, NESTER WANGITHI KIBUCHI and IRENE WANGUI NDEGWA.
3. As the parties are family, each will meet their own costs.
it is clear to me that the defence herein falls within the definition of those clearest of cases where a pleading is so hopeless that it discloses no reasonable cause of action nor any triable issues.
Justice shall not be delayed.
Issues in the judgment
#The plaint pleads an erroneous confirmation date of the grant, which the court corrected on the record
The plaint and the application plead different names for the beneficiaries/trustees and inconsistent land parcel names (NYANGENI vs NGIRIAMBU)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cyrus Namu Justin & another v Francis Muriuki Kibuchi [2017] KEELC 2091 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2091/eng@2017-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.