Kakuzi Plc v Kamicha & 7 others
The bottom line
#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 three Defendants have made out a good case for striking out this suit in a summary manner even before pleadings close.
- 2.Whether the Plaintiff's right to a fair hearing guaranteed under Article 50(1) of the Constitution is at risk if the suit is dismissed/struck out before trial.
- 3.Whether the three Defendants bear any burden of proof in this case.
Key legal issues
#Whether the suit could be struck out summarily before pleadings close
No - the motion raised disputed facts (ownership, lapse of lease, occupation) that must be proved by evidence, and the Defendants had not even filed their defences despite directions of 22-7-2025 and 4-3-2026
The court held the motion smacked of a preliminary objection but rested on disputed facts not yet ascertained. The Defendants had failed for over a year to file defences, witness statements and documents as directed, stalling expeditious resolution contrary to the overriding objective in Section 1A of the Civil Procedure Act. A defence cannot be determined summarily where the defendants hesitate to plead their case fully.
Whether striking out would violate the Plaintiff's Article 50(1) right to a fair hearing
Yes - striking out would deny the Plaintiff a fair hearing and its day in court; the suit discloses a cause of action with prima facie valid lease and uncontroverted evidence of grazing and water pipeline use
The court found the plaintiff entitled to its day in court, which comes only if parties comply with procedural law. The replying affidavit showed a prima facie valid lease, uncontroverted evidence of grazing and a critical water pipeline, and legitimate expectation of lease renewal. Striking out a suit where defendants have filed no evidence is unjust; the striking-out power must be exercised sparingly in the era of entrenched fair-hearing rights.
Whether the 2nd, 3rd and 4th Defendants bear any burden of proof
They bear no legal burden of proof, but as civil litigants they carry an evidential burden to adduce sufficient evidence to establish their averments and rebut the plaintiff's case on a balance of probabilities
Distinguishing civil from criminal proceedings, the court held the defendants have no legal burden of proof but must back their pleadings with evidence or risk the plaintiff proving its case on a balance of probabilities. Their 30-year occupation claim was vague - no parcel identified, no ancestors named, no family genealogy given - so they will bear the evidential burden at trial.
Legal principles established
#- A suit cannot be struck out summarily on disputed facts that require proof by evidence; striking out is a draconian discretionary power to be exercised sparingly, especially under the constitutional right to a fair hearing.
- Parties are under a duty to assist the court and comply with its directions and the statutory timelines for filing defences; failure to do so breaches the overriding objective.
Court orders
#- 1.The notice of preliminary objection/motion dated 6-5-2026 is dismissed with costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution (Environment and Land Court jurisdiction over land disputes); motion brought under Orders 2 rule 15 and 51 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, Section 30 of the Land Registration Act and Article 40 of the Constitution
Relief refused
#Striking out of the plaintiff's suit with costs to the applicants (2nd, 3rd and 4th Defendants)
The motion was not on a pure point of law, raised disputed facts requiring evidence, and striking out is a draconian remedy to be exercised sparingly; the suit discloses a cause of action and the Defendants had filed no evidence
Costs
The motion dated 6-5-2026 dismissed with costs to the Plaintiff.
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.
In conclusion and for the reasons given, I nd no merit in the motion dated 6-5-2026 which I dismiss with costs.
The power to strike out suits is draconian and discretionary and must therefore be exercised sparingly and with great caution especially in this era of the right to a fair hearing which is entrenched in the Constitution.
The motion dated 6-5-2026 smacks of a preliminary objection which should be on a pure point of law and not on disputed facts which are not yet ascertained and need to be proved by way of evidence.
In short, the Defendants will have the evidential burden to adduce sucient evidence to establish the averments that they have made and to rebut the ones made by the Plainti.
By failing to comply with the Court's directions, the 2nd, 3rd and 4th Defendants are in breach of the Court's directions.
Issues in the judgment
#Motion mislabelled as a preliminary objection despite being a notice of motion
Grounds numbering error - 'Four' used twice
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kakuzi Plc v Kamicha & 7 others", Case Analysis (2026). Environment and Land Case E044 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5727/eng@2026-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.