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ELCDismissedNot stated in the judgment

Anthony Njoka Mugo & another v Stanley Muriithi Mugo [2018] KEELC 2014 (KLR)

Environment and Land Court (High Court) of Kenya at Kerugoya
18 May 2018
SMS. MUKUNYA
908 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to throw out a family's claim that registered land is held in trust for siblings, ruling such trust claims must be decided at a full trial.

What this practically means

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Executive summary

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The defendant/applicant moved the court under Order 2 Rule 15(1)(a)(b) and (c) of the Civil Procedure Rules seeking striking out of the plaintiffs' suit, contending that the plaint disclosed no reasonable cause of action. He asserted he is the absolute registered owner of MUTIRA/KAGUYU/525 with an indefeasible title, that no documents showed any intention to create a trust at allocation and registration, and that the suit was scandalous, frivolous and vexatious. The plaintiffs/respondents opposed, averring that the defendant was allocated the land by the clan in 1959 during adjudication, at a junior age, to hold it in trust for himself and his siblings; that the trust was customary and implied on the register; and that Section 28 of the Land Registration Act recognizes customary trusts. They submitted that proof of an implied or customary trust is a matter reserved for trial. The court, applying the test in DT Dobie v Muchina and Waki J's observations in Bank of Credit and Commerce International, held that summary striking out is draconian and reserved for plain and obvious cases. Finding that the plaint clearly pleads a trust, that the land was clan land, and that the parties are siblings, the court held the claim was neither vexatious nor frivolous and that the plaintiffs should be allowed to prove their claims at trial. The application was dismissed with costs on 18 May 2018.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaint discloses no reasonable cause of action against the defendant
  2. 2.Whether the suit is scandalous, frivolous and vexatious and an abuse of the court process and should be struck out

Key legal issues

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01

Whether the plaintiffs' claim of customary/implied trust over MUTIRA/KAGUYU/525 discloses a reasonable cause of action

Holding

The application was dismissed; the trust claim is a matter for trial and the parties should be afforded an opportunity to canvass their claims.

Reasoning

The court noted the settled test from DT Dobie that striking out is reserved for plain and obvious cases. The plaint clearly pleads a trust, alleged to be customary, arising from clan allocation in 1959, and Section 28 of the Land Registration Act recognizes customary trusts. Proof of such trust is a matter for adduction of evidence at trial. The parties are siblings and the land was clan land, so each party should be heard.

p. 2

Legal principles established

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  • A suit should only be summarily dismissed where it plainly and obviously discloses no reasonable cause of action and is incurable by amendment; a mere semblance of a cause of action should be allowed to proceed

Court orders

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  1. 1.The defendant's application to strike out the suit is dismissed
  2. 2.Costs of the application awarded to the plaintiffs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SM
majority

Wrote the judgment

Jurisdiction invoked
Order 2 Rule 15(1)(a)(b) and (c) of the Civil Procedure Rules

Relief refused

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Striking out of the plaintiffs' suit

The claim discloses a cause of action based on an alleged customary trust which is a matter for trial

p. 2

Costs

Dismissed with costs to the plaintiffs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I find the application without merit and I dismiss it with costs.
p. 2Disposition - application to strike out dismissed
Summary determination of cases are draconian and should only be applied in plain and obvious cases both as regards the facts and the law.
p. 1Test for striking out pleadings
The plaintiffs aver that the applicant was allocated the suit land at a junior age by the clan in 1959 during adjudication period to hold the same in trust for himself and in trust for his siblings.
Nature of the alleged customary trust

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, "Anthony Njoka Mugo & another v Stanley Muriithi Mugo [2018] KEELC 2014 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2014/eng@2018-05-18

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