MUTHITHI INVESTMENTS LIMITED V ANDREW S. KYENDO & 22 OTHERS [2005] KEHC 589 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

Civil Case 498 of 2004

MUTHITHI INVESTMENTS LIMITED……………........……..…………. PLAINTIFF

VERSUS

ANDREW S. KYENDO…………………………….….…………. 1ST DEFENDANT

AMINA MOHAMMED……………………………….....………… 2ND DEFENDANT

WILLIAM K. MWANGANGI………………...…….......…………. 3RD DEFENDANT

ROSEMARY NYOKABI………………….…………....………… 4TH DEFENDANT

JAMES BANGA………………………………...……..…………. 5TH DEFENDANT

MESHACK O. AMBUKA………………………..……..……….. 6TH DEFENDANT

BERNARD MUTTAHA………………………….……..……….. 7TH DEFENDANT

W. OKEYO MBATA……………………………………...……… 8TH DEFENDANT

J.M. KAGAI……………………………………………...……….. 9TH DEFENDANT

JANE WANGECI……………………………………….……… 10TH DEFENDANT

RAPHAEL  K. THIMBA………………………..……..………. 11TH DEFENDANT

MARY N. KAGO……………………………………….………. 12TH DEFENDANT

DICK OUMA OCHIENG……………………….……..………. 13TH DEFENDANT

DAVID AUMA………………………………….……….………14TH DEFENDANT

PATRICK NDIRANGU……………………….………..……... 15TH DEFENDANT

SAID ALI ABU…………………………………….,…….….… 16TH DEFENDANT

SAMUEL NGATIA………………………………….,….…….. 17TH DEFENDANT

JAMES NJOROGE………………………………,….………. 18TH DEFENDANT

MARY NDUKU KIOKO……..………………….…,………… 19TH DEFENDANT

MAINA MUTAHI…………………………………..………….. 20TH DEFENDANT

JOHN MWAURA WAINAINA………………..…….…….….. 21ST DEFENDANT

MUDIA MUCHEMI………………………………..………….. 22ND DEFENDANT

NAMAN OGEMBO OGWENO…………………….…..……. 23RD DEFENDANT

RULING

The application before me was filed by the Plaintiff/Applicant on 5th July 2004 under Order VI Rule 13 (1) (b) (c) and (d) of the Civil Procedure Rules and S. 3A of the Civil Procedure Act.  The Applicant seeks to strike out the defence filed by the 1st to 12th Defendants/Respondents on 16th June 2004 and the additional one of the 5th defendant alone filed on 11th June 2004.  The Plaintiff also prays for costs.

The grounds on which the application is based are that the defence is a mere denial of facts, since Plaintiff is the registered owner of the suit premises, namely, L.R. No.23917 Nairobi and that the Defendants have admitted on oath that they have settled and put up structures on the premises from which the Plaintiff by his plaint seeks their eviction and restraining orders.  The applicant also argues that the two defences are contradictory as relates to the 5th Defendant who is included in the joint defence as well.  The Applicant in its supporting affidavit sworn by its Managing Director Eric Maina has annexed documents to prove its ownership of L.R. No. 23917 among them a Court order dated 8th July 2000 in which the Applicant herein was declared the owner of the land in dispute in H.C.C.C. No. 457 of 1999.

The Defendants/Respondent’s main defence is that the Applicant holds the title to the suit premises irregularly the same having been obtained through fraud.  Paragraph 4 of the Defence of 16th April 2004 particularly states as follows.

“4.    The 1st to 12th Defendants aver that if the Plaintiff has any documents in respect of L.R. No.23917 then the same are phoney and/or were obtained irregularly and do not vest any ownership on the Plaintiff.”

In his submissions, Counsel for the Respondents stated from the bar that the Respondents settled on the land under presidential directive and with the authority of the City Council.  All he said about the Court order is that it is suspect.  With respect I find Counsel’s comment about this Court’s order rather unbecoming as it suggests fraudulent dealings on the part of the Court.  Counsel knows that the appropriate course to take where one is dissatisfied with an order of the Court is to move the Court to either set the judgment aside in a review application or on appeal.  That the Respondents may not have been parties in H.C.C.C. No. 457 of 1999 does not give them any right to adopt an abusive attitude towards the Court in regard to its orders.

Much as I agree with the Respondents that striking out of pleadings ought to be allowed only in the clearest of cases, it is clear to me that the defence of 16th April 2004 falls under that category in that the order of the Court vesting ownership on the Applicant cannot be said to be “phoney and/or irregularly obtained” when the same remains unchallenged.  It is true the court should allow a party who alleges fraud an opportunity to establish and prove the same by evidence adduced at a trial but, a defence which is obviously unsustainable or unarguable is one which ought not to be allowed.The Court of Appeal in NITIN PROPERTIES LTD –vs- JAGJIT SINGH KHALSI & ANOR CIV. APP. No.132 of 1989 held that the Court ought to strike out a pleading which is “incontestably or hopelessly bad.”  I find the defence herein to be so since in the presence of the Court order relied upon by the Applicants and the admission by the Defendants that they have entered the Applicants land, settled thereon and put up structures on the same, the defence as it stands is a sham and incapable of cure by amendment or otherwise.  Moreover, the said Defence does not particularize the alleged fraud as required under Order VI Rule 8 (1) (a).  In the premises I find that this application succeeds.  I allow the same and grant the orders sought in paragraph 1 and 2 of the application, the latter order being granted at the request of the Counsel for the Respondents made during his submissions herein.

Costs of the application shall be borne by the 1st to 12th Respondents.

Dated, Signed and Delivered at Nairobi on 17th day of June 2005

M.G. Mugo

Judge

In the presence of:

Ms Kilonzo h/b for Kariuki for the Plaintiff/Applicant

Mr. Gichugi for the Defendants/Respondents