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ELCDismissedEnvironment and Land Case Civil Suit 021 of 2018· [2023] KEELC 17358 (KLR)

Masila & 2 others v Krotonite Enterprises Limited

Environment and Land Court of Kenya
8 March 2023
LNL.L Naikuni
5,305 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to throw out an adverse possession land claim, ruling it must be decided at a full trial.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Mombasa (L.L Naikuni, J) determined a notice of motion dated May 9, 2022 by Krotonite Enterprises Limited seeking, under Order 2 Rule 15(1)(d) of the Civil Procedure Rules, the striking out of the plaintiffs' originating summons claiming the suit land (LR No MN/III/5612, CR 58960) by adverse possession, and dismissal of the suit. The respondent argued it was registered as proprietor only on February 5, 2013; that the suit filed on February 12, 2018 came barely five years later, before the expiry of the 12-year limitation period; and that the land was previously government land, so time did not run under section 41 of the Limitation of Actions Act. The plaintiffs opposed, asserting possession since 1993, raising the unresolved discrepancy between 'Krotonite' and 'Kryptonite' Enterprises Limited, and contending that striking out requires no evidence and is a drastic remedy. The court framed three issues, reviewed the settled authorities (Co-operative Merchant Bank v Wekesa, Yaya Towers, D.T Dobie) that striking out is draconian and reserved for plain and hopeless cases, and held that the matter raised numerous weighty factual and legal issues - possession, the name discrepancy, the 2013 grant and the government-land point - that must be resolved at a full trial. The application was dismissed, the matter directed to be heard within 180 days with a mention on May 9, 2023, and costs of the application were made costs in the cause.

Key legal issues

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01

Whether the originating summons discloses grounds for striking out under Order 2 Rule 15

Holding

The application did not meet the threshold; the pleadings raise weighty factual and legal issues requiring full trial

Reasoning

The court reviewed the settled principles from Co-operative Merchant Bank v Wekesa, Yaya Towers, D.T Dobie and other authorities that striking out is draconian and reserved for plain cases. It found numerous factual and legal issues in dispute - the plaintiffs' long possession since 1993, the discrepancy between Krotonite and Kryptonite Enterprises, the 2013 grant, and whether time ran against government land under section 41 of the Limitation of Actions Act - none of which could be resolved summarily without evidence.

p. 9
02

Costs of the application

Holding

Although the plaintiffs would ordinarily be entitled to costs, costs were made costs in the cause given the matter proceeds to full trial

Reasoning

The court applied section 27(1) of the Civil Procedure Act that costs follow the event, citing Rosemary Wambui Munene and Supermarine Handling Services. However, balancing the scales of justice and considering the matter was still to proceed to full trial, it found it just and reasonable that costs of the application be in the cause rather than awarded outright.

p. 10

Legal principles established

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  • Striking out pleadings is a draconian remedy to be exercised sparingly and only in plain cases; a suit with a semblance of a cause of action should proceed to trial
  • Where factual and legal disputes exist, they must be resolved at full trial rather than at interlocutory stage

Court orders

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  1. 1.The notice of motion application dated February 9, 2018 be and is hereby dismissed for lack of merit
  2. 2.The matter to be fixed and heard within the next one hundred and eighty (180) days from delivery of the ruling, with a mention on May 9, 2023 for directions under Order 37 Rules 16-19 and pre-trial conference under Order 11 of the Civil Procedure Rules, 2010
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)(d)
  • Civil Procedure RulesOrder 5 Rule 17
  • Civil Procedure RulesOrders 6, 7 and 11
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 37 Rules 16, 17, 18 and 19
  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 17
  • Limitation of Actions ActSection 41
  • Land Registration ActSection 68
  • Civil Procedure ActSection 27(1)
  • Constitution of Kenya, 2010Articles 47, 50 and 159

Cases cited (13)

  • Sisto Wambugu v Kamau Njunguna
    [1983] eKLR

    Ingredients required for adverse possession claim to succeed

  • Mtana Kahindi Ngala Mwangandi
    [2015] eKLR

    Ingredients of adverse possession

  • Kofinaf Company Limited & another v Nahashon Ngige Nyagah & 20 others
    [2015] eKLR

    Reliance on frivolity/abuse of process argument

  • Mercy Nduta Mwangi t/a Mwangi Keng'ara & Co Advocates v Invesco Assurance Co Ltd
    CA No 110/2016

    Striking out should be exercised sparingly

  • D.T Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another
    CA 37 of 1978 [1980] eKLR

    No suit ought to be summarily dismissed unless hopeless and incurable by amendment

  • Saudi Arabian Airline Corporation v Sean Express Services Limited
    Civil Case No 79 of 2013 [2014] eKLR

    Principles guiding striking out of pleadings; power used sparingly in clearest cases

  • The Co-operative Merchant Bank Limited v George Fredrick Wekesa
    Civil Appeal No 54 of 1999

    Striking out is a draconian act resorted to only in plain cases

  • Yaya Towers Limited v Trade Bank Limited (In Liquidation)
    Civil Appeal No 35 of 2000

    A party is entitled to pursue a claim however implausible; jurisdiction sparingly exercised

  • Dr Murray Watson v Rent A-Plane Limited & others
    Civil Case No 2180 of 1984

    When a pleading is scandalous or embarrassing; curable pleadings should not be struck out

  • Eastern Kitui Stores Ltd v Nairobi City Council
    HCCC No 564 of 1997

    A pleading is embarrassing if unclear; suit not dismissed unless hopeless

  • Francis Kamande v Vanguard Electrical Services Limited
    CA No 152 of 1996

    Same proposition on embarrassing pleadings and hopeless suits

  • Rosemary Wambui Munene v Ihururu Dairy Co-Operatives Societies Limited
    [2014] eKLR

    Costs follow the event unless court for good reason otherwise orders

  • Supermarine Handling Services Limited v Kenya Revenue Authority
    Civil Appeal 85 of 2006 [2010] eKLR

    Costs follow the event; appellate interference with costs discretion

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land; interlocutory application under Order 2 Rule 15(1)(d) of the Civil Procedure Rules, 2010

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, "Masila & 2 others v Krotonite Enterprises Limited", Case Analysis (2023). Environment and Land Case Civil Suit 021 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17358/eng@2023-03-08

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