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ELCDismissedEnvironment & Land Case 11 of 2022

Denooyer & another v Ancilotto

Environment and Land Court of Kenya
25 July 2023
2,693 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to throw out a land claim by foreign investors, confirming that weak-looking cases still deserve a full hearing.

What this practically means

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Executive summary

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The Defendant applied under Order 2 Rule 15(1)(a) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act to strike out the Plaintiffs' suit, contending that the Amended Originating Summons disclosed no reasonable cause of action because the Plaintiffs, as non-citizens, cannot lawfully acquire agricultural land, and that their claim under Section 24 of the Land Control Act had not accrued absent a presidential exemption. The Plaintiffs opposed, asserting claims to possessory rights over a portion of LR No 8035/9 for their lifetime based on a legitimate expectation created by the Defendant's approval of developments valued at over USD 2 million, and urged that striking out is a draconian remedy reserved for plainly hopeless suits. The court framed the sole issue as whether the suit was so hopeless as to warrant striking out. Relying on Yaya Towers Limited v Trade Bank Limited, AK Bor, J held that the court's function is confined to scrutinising the pleading, not the evidence. The uncontested facts - long occupation and development of a portion of the land with the Defendant's consent - supported the prayers sought, so the claim raised a reasonable cause of action. The court also held that Sections 9 and 24 of the Land Control Act must be construed in light of Article 65 of the Constitution, which permits non-citizens to hold land on leasehold tenure of up to 99 years. The application was dismissed, parties were directed to comply with Order 11 for expeditious hearing, and each party was ordered to bear its own costs.

Questions the Court framed

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

  1. 1.Whether the Plaintiffs' suit should be struck out for disclosing no reasonable cause of action
  2. 2.Whether the Plaintiffs' replying affidavit was admissible on an application under Order 2 Rule 15(1)(a)

Key legal issues

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01

Whether the suit discloses no reasonable cause of action warranting striking out under Order 2 Rule 15(1)(a)

Holding

The suit is not hopeless; the claim for possessory rights based on legitimate expectation raises a reasonable cause of action

Reasoning

The court applied the settled test that a suit is struck out only where it is plainly and obviously hopeless and beyond redemption. The uncontested facts - that the Plaintiffs occupied and developed a portion of the Defendant's land with her consent, investing substantially - support the prayers sought. Determination of their claimed rights requires trial, not summary dismissal.

p. 4
02

Admissibility of a replying affidavit in response to a striking-out application under Order 2 Rule 15(2)

Holding

Order 2 Rule 15(2) governs the application itself and is silent on the respondent's response; Order 51 Rule 14 permits a respondent to file a replying affidavit

Reasoning

The court held that the bar on evidence under Order 2 Rule 15(2) applies to the application, not the response. Order 51 Rule 14 allows a respondent wishing to oppose an application to file grounds of opposition or a replying affidavit, failing which the matter may proceed ex parte. The replying affidavit was therefore properly on record.

p. 4
03

Whether non-citizens can claim an interest in agricultural land

Holding

The Land Control Act provisions must be read with Article 65 of the Constitution, which permits non-citizens to hold land on leasehold tenure of up to 99 years

Reasoning

The Defendant argued the Plaintiffs, as non-citizens, could not lawfully acquire agricultural land absent a presidential exemption under Section 24 of the Land Control Act. The court held Sections 9 and 24 must be construed in light of Article 65, which allows non-citizens leasehold tenure not exceeding 99 years, meaning the claim was not necessarily barred.

p. 5

Legal principles established

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  • On an application to strike out a pleading for disclosing no reasonable cause of action, the court only scrutinises the pleading and its particulars, not the evidence or prospects of success
  • A claim asserting possessory rights over land developed with the owner's consent, based on alleged legitimate expectation, discloses a reasonable cause of action fit for trial
  • Sections 9 and 24 of the Land Control Act must be construed in the context of Article 65 of the Constitution, which allows non-citizens to hold land on leasehold tenure not exceeding 99 years

Court orders

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  1. 1.The court declines to strike out the suit
  2. 2.Parties directed to comply with Order 11 so that the case can be set down for hearing expeditiously
  3. 3.Each party to bear its own costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (suit concerning land); application under Order 2 Rule 15 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

Relief refused

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Defendant's application dated March 16, 2023 to strike out the suit and for costs

The Amended Originating Summons discloses a reasonable cause of action; the claim is not hopeless or beyond redemption

p. 4

Costs

Each party will bear its costs.

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.

Looking at the facts of this case set out in the Amended Originating Summons, one cannot say that the claim has no chance of success as to warrant the striking out of the claim.
p. 4Striking out - no reasonable cause of action test
The determination of the rights, if any, that the Plaintiffs have to part of the suit property certainly raises a reasonable cause of action.
p. 4Reasonable cause of action in possessory-rights claims
has to be construed in the context of Article 65 of the Constitution which allows non-citizens to hold land on leasehold tenure for a period not exceeding 99 years.
p. 5Land Control Act and Article 65 - non-citizens holding land
The court declines to struck out the suit. Parties are directed to comply with Order 11 so that the case can be set down for hearing expeditiously.
p. 5Final orders - application dismissed
Each party will bear its costs.
p. 5Costs

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, "Denooyer & another v Ancilotto", Case Analysis (2023). Environment & Land Case 11 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19317/eng@2023-07-25

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