Benta Kalara Achieng, Everlyne Atieno Achieng, Cecilia Wanjiru Gichuru, Mary Ndunge Mutuku & Wilson Mutumba Women Group (Duly registered as a self help group with membership of 2,907 women) v Attorney General [2017] KEELC 1929 (KLR)

REPUBLIC  OF KENYA

IN THE ENVIRONMENT AND LAND COURT

MILIMANI LAW COURTS

ELC.  CASE NO. 2028 OF 2007

BENTA KALARA ACHIENG……….……………..……1ST PLAINTIFF

EVERLYNE ATIENO ACHIENG……………………….2ND PLAINTIFF

CECILIA WANJIRU GICHURU.……………………….3RD PLAINTIFF

MARY NDUNGE MUTUKU………………………….….4TH PLAINTIFF

WILSON MUTUMBA WOMEN GROUP………………5TH PLAINTIFF

(DULY REGISTERED AS A SELF HELP GROUP WITH MEMBERSHIP OF 2,907 WOMEN)

VERSUS

THE ATTORNEY GENERAL….…………….………….DEFENDANT

RULING

Coming up before me for determination is the Notice of Motion dated 27th November 2013 in which the Defendant/Applicant seeks for the following orders:

1. That the court do visit the disputed site being Land Reference Number 209/10610 (hereinafter referred to as the “suit property”);

2. That the Plaintiffs’ Amended Plaint dated and filed on 21st December 2012 be struck out and or dismissed with costs.

3. That the 5th Plaintiff through whom the 1st to 4th Plaintiffs claim through lacks the juridical status to own property;

4. That the costs of the suit and of this Application be borne by the Plaintiffs.

The Application is premised on the grounds appearing on its face together with the Supporting Affidavit of Silas Mc’opiyo sworn on 27th November 2013 in which he averred that he is the Director of Planning and Development in the Police Headquarters at Nairobi under which all physical development planning falls. He further averred that the court should visit the suit property in order to appreciate the great investment that the Government has made therein in order to reach a fair and just determination of this suit. He further averred that the Amended Plaint is scandalous, frivolous and vexatious for the reason that the Plaintiffs are not the legal or beneficial owners of the suit property, that the Defendant/Applicant possesses a valid title to the suit property registered at the Land Titles Registry as I.R. 129371, that the Plaintiffs do not have any correspondence file with the Ministry of Lands, that the Plaintiffs lack the legal capacity to institute this action and that the Government embarked on a project to build house units for security personnel on the suit property in 2005 to the tune of more than Kshs. 1. 4 billion. He further averred that the title held by the Plaintiffs is a forgery.

The Application is contested. The Plaintiffs filed their Grounds of Opposition dated 19th March 2014 in which they stated as follows:

1. That this Application has been brought after unreasonable delay being 7 years after the suit was filed.

2. That the Application seeks for striking out of the Amended Plaint and at the same time seeks for the court to visit the suit property.

3. That the Amended Plaint should not be struck out as it raises triable issues such as whether the Defendant/Applicant holds title to the suit property or it is the Plaintiffs/Respondents who do, whether the development of the suit property by the Government can confer a superior rite or title to it and whether the title for the suit property held in the name of the 5th Plaintiff/Respondent is a forgery.

I have considered this Application, the affidavits and the written submissions together with the authorities relied upon. The main issue the court has been called upon to make a determination is whether the Amended Plaint dated 21st December 2012 raises any triable issue or is a sham and should be struck out. The applicable law on this issue is Order 2 Rule 15 of the Civil Procedure Rules, 2010. The said  Rule 15 provides that,

“(1) At any stage of the proceedings the Court may order to be struck out or amended any pleading on the ground that:-

a.It discloses no reasonable cause of action or defence in law.

b.Its scandalous, frivolous or vexatious; or

c.It may prejudice, embarrass or delay the fair trial of the action; or

d.It’s otherwise an abuse of the Court process and may order the suit be stayed or dismissed or judgment to be entered accordingly as the case may be.”

Striking out of pleadings is in the discretion of the Court and the court will do so when it is convinced that the applicant has demonstrated that the suit or pleading is scandalous, frivolous and vexatious or the suit is an abuse of the court process. In as much as the court has discretion to strike out pleadings, it has always been slow in undertaking this draconian action and has always favoured the need to hear a suit on its merit. Striking out cannot be resorted to unless it is quite clear that the pleading objected to discloses no arguable case. Indeed it has been conceded that the rule is applicable only in plain and obvious cases. The Court of Appeal in D.T. Dobie & Co. (Kenya) Ltd vs. Muchina (1982) KLRheld that,

“The Court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the Court.  At this stage, the Court ought not to deal with any merits of the case for that is a function solely reserved for the Judge at the trial as the Court itself is not usually fully informed so as to deal with the merits “without discovery, without oral evidence tested by cross-examination in the ordinary way.”  (Sellers LJ (supra).  As far as possible indeed, there should be no opinion expressed upon the application which may prejudice the fair trial of the action or make it uncomfortable or restrict the freedom of the trial Judge in disposing of the case in the way he thinks right.”

A look at this Application reveals that the Defendant/Applicant has gone into lengthy details to explain and justify the grounds upon which the Amended Plaint should be struck out and have in essence delved into the realm of actual evidence in order to justify their case for striking out the Amended Plaint. The Defendant/Applicant has alleged that the title held by the Plaintiffs in respect of the suit property is a forgery, further alleging that the title held by the Government is the valid one. To prove such fraud, evidence is required which can only be adduced at a full hearing. Indeed the question of ownership of the suit property is at the heart of this suit and can only be determined upon consideration of all the evidence adduced by all the parties at the trial. Accordingly, in bringing up that issue and seeking to rely on it in support of this Application is, in my opinion, embarking upon a trial of this case at this stage to the detriment of the parties in this suit. In the circumstances, the Defendant/Applicant cannot make a claim the Amended Plaint does not raise any cause of action. A cause of action does not necessarily mean that a party suing is bound to succeed in the action or that the party must have a right to that which he or she has claimed. In the case of Wenlock vs. Maloney & Others (1965) 1 W.L.R 1238 the court held that,

“This summary jurisdiction of the court was never intended to be exercised by a minute and a protracted examination of documents and the facts of the case in order to see whether the plaintiff really has a cause of action. To do that is to usurp the position of the trial judge and produce a trial of the case in chambers on affidavits only, without discovery and without oral evidence tested by cross examination in the ordinary way. This seems to me to be an abuse of the inherent power of the court and not a proper exercise of that power”

In light of the foregoing, I find that this Application is not merited and I hereby dismiss it with costs to the Plaintiffs.

It is so ordered.

DELIVERED AND SIGNED AT NAIROBI THIS 1STDAY OF SEPTEMBER 2017.

MARY M. GITUMBI

JUDGE