Kakuzi Plc v Kamicha & 7 others

the suit land yet the Plainti has no locus or right to move the Court for the grant of the orders sought because it does not own the suit land. The owner of the suit land is the 6th Defendant while the 7th Defendant is mandated to administer it. Two, the Plainti was once the owner of the suit land but its lease lapsed in the year 2024 and that is when the suit land reverted to the 6th Defendant. Three, it is wrong and misleading for the Plainti to claim ownership on the basis of an application for renewal of a lease which has not been allowed. Four, the fact that the Defendants were evicted means that the Plainti was not in occupation of the suit land. It is imperative that the Court interrogates the pleadings and documents led in the suit by the Plainti even before considering the documentation by the Defendants to establish the claim of ownership. Four, this is a classic case of waste of precious and limited judicial time and resources and the suit ought to be struck out. Finally, according to the witness statement by the 3rd Defendant dated 23-4-2026, the suit property is ancestral land which was alienated by the British Government. The community took back the land almost 30 years ago, planted trees on one part and they have a quarry on the other part. For the above and other reasons, they pray that the Plainti’s suit be struck out. 3. The motion is opposed by the Plainti and its legal ocer, Janet Kabaya has sworn a replying adavit dated 29-6-2026 in which she replies as follows. Firstly, the Defendants have failed to appreciate that the suit and the injunction relate to two parcels, that is to say, L.R. No. 3558 and L.R. No. 10731 situated in Murang’a County which are utilized by the Plainti for grazing its livestock and housing a critical water pipeline that transports water from Ithanga Water Treatment plant which is channeled through pipes on the suit land to the residents of Thika and Ithanga sub counties. This makes the preservation of the property a matter of grave public interest. Secondly, striking out of the suit should only happen after the substantive hearing of the dispute. During the hearing, the Plainti intends to apply for a site visit by the Court to point out the areas of invasion. The Plainti’s right to a fair hearing under Article 50 of the Constitution ought not to be curtailed. Thirdly, the motion dated 6-5-2026 only refers to L.R. No. 3558 yet the suit also relates to L.R. No. 10731 which was also invaded by the Applicants leading to the interim injunctive orders dated 22-7-2025 in respect of both parcels. The lease for L.R. No. 10731 has not expired. As for the L.R. No. 3558, the Plainti has applied for the renewal of its lease and as it waits, it is in actual physical possession of the land. Fourthly, the Plainti has a legitimate expectation that the lease for L.R No. 3558 will be reviewed as it holds a protectable interest over the land by virtual of Article 40(1) of the Constitution. The delay by the Government to renew the lease cannot be used to penalize the Plainti. Fifthly, the Defendants have not themselves proved any identiable stake in the L.R. No. 3558 either as proprietors or tenants/lessees. In this regard, they have no title to the suit premises and their actions between June and July 2025 constitute agrant trespass, willful damage to property and lawlessness which is why the Court had to issue the injunctive orders that it did to preserve the suit property. Sixthly, the 7th Defendant has not initiated any statutory public processes under Sections 12(1) and 14 of the Land Act 2012 which require public notices, auctions, tenders and others before public land can be allocated. The application for allotment is therefore premature and speculative and cannot override or invalidate the Plainti’s application for lease extension. Finally, striking out pleadings is a draconian remedy of last resort which has no application in this case. 4. Counsel for the parties were to le and serve written submissions by 12-8-2026 but as I write this ruling on 20-8-2026, no such submissions have been led by either party. In the absence of written submissions, I will frame the issues for determination. In so doing, I will be guided by Order 15 rule 2 of the Civil Procedure Rules which allows the court to frame issues from the material led by the parties or their advocates. I nd that the following issues arise. i. Whether the three Defendants have made out a good case for striking out this suit in a summary manner even before pleadings close. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5727/eng@2026-09-23 2

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5. ii. Whether the Plainti’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. iii. Whether the three Defendants bear any burden of proof in this case. Regarding the rst issue, I nd that it is not procedural to strike out this suit in a summary manner before the pleadings close. On 227-2025, the Court directed the Defendants to le and serve their defences within the time stipulated by the law. Order 7 rule 1 of the Civil Procedure Rules provides as follows. “ Where a Defendant has been served with a summons to appear, he shall, unless some other or further order be made by the Court, le his defence within 14 days after he had entered appearance in the suit and serve it upon the Plainti within fourteen days from the date of ling the defence and le and adavit of service.” Rule 5 of the same order provides as follows. “ The defence and counterclaim led under rules 1 and 2 shall be accompanied bya. An adavit under order 4 rule 1 (2) where there is a counterclaim; b. A list of witnesses to be called at the trial; c. Written statements signed by the witnesses except expert witnesses. d. Copies of documents to be relied on at the trial.” It is now more than a year since the Court issued the above directions and they have not been complied with. The current application was led just one week to the pretrial conference which was coming up on 19-5-2026. At the said conference, the Court was to nd out if the directions of 22-7-2025 and which had been repeated on 4-3-2026 had been complied with. Section 1A (3) of the Civil Procedure Act provides as follows. “ A party to Civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that eect, to participate in the processes of the Court and to comply with the directions and orders of the Court. ’’ By failing to comply with the Court’s directions, the 2nd, 3rd and 4th Defendants are in breach of the Court’s directions. They have also failed to comply with the timelines set by the law for ling and serving their defences complete with the witness statements and documents. They have stalled the quick resolution of the dispute thereby going against the overriding objective of the Civil Procedure Act and the rules made thereunder which is to facilitate the fair, expeditious, proportionate and aordable resolution of disputes governed by the Act. 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. It is therefore my nding that dispute cannot be determined summarily because there are many disputed facts and the 2nd, 3rd and 4th Defendants have been hesitant to plead their case fully so that the other parties and the court can understand what their defence is all about. 6. As for the second issue, I nd that striking out the Plaintis’ suit will deny in a fair hearing guaranteed under Article 50(1) of the Constitution. The Plainti is entitled to its day in Court. The same with the Defendants. That day will only come if the parties comply with the procedural law of pleadings https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5727/eng@2026-09-23 3

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and adhere to the Court’s directions. The apparent lethargy by the 2nd, 3rd and 4th as well as the other Defendants to disclose their defences cannot be used to their advantage and to the detriment of the Plainti. The Plaintis suit discloses a cause of action. In the replying adavit dated 29-6-2026, there is a lease that looks valid, prima facie. There is also uncontroverted evidence that the land in issue was used for grazing and for housing a critical water pipeline. Further to the above, there is evidence that the Plainti is waiting for the lease for part of the suit land to be received and there is legitimate expectation that it will be renewed. To strike out such a suit when the Defendants have not led even an scintilla of evidence is unjust. 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. 7. Finally on the third issue, I nd that the 2nd, 3rd and 4th Defendants have no legal burden of proof in this case at all. However, unlike an accused person who has no obligation to prove anything in criminal proceedings, this being a civil case, the Defendants are expected to back their averments in their pleadings with evidence. If they do not do so, they run the risk of the Plainti proving its case on a balance of probabilities if the Defendants le no evidence at all. They have stated that they have been on the suit land for 30 years. They have not said which of the two parcels they were in occupation of. They have also stated that the suit land was their ancestral land before the year 1925. They have not said which ancestors of theirs occupied the land and how they are related to him in their family genealogy. In short, the Defendants will have the evidential burden to adduce sucient evidence to establish the averments that they have made and to rebut the ones made by the Plainti. 8. In conclusion and for the reasons given, I nd no merit in the motion dated 6-5-2026 which I dismiss with costs. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 23RD DAY OF SEPTEMBER, 2026. M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistant – Antony Plainti’s Counsel – Mr Rao h/b Mr Mwaboza holding brief for 2nd, 3rd and 4th Defendants’ Counsel Mr. Mburu for the 6th Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5727/eng@2026-09-23 4

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