New Spring of Life Gospel Ministries v Holy Redeemed Apostolic Ministries International [2015] KEHC 4583 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH  COURT OF KENYA AT BUSIA.

ELC. NO. 6 OF 2015.

NEW SPRING  OF LIFE GOSPEL MINISTRIES………………………….PLAINTIFF

=VERSUS=

HOLY REDEEMED APOSTOLIC MINISTRIES

INTERNATIONAL…………………………………………………………….DEFENDANT.

R U L I N G.

The Applicant, NEW SPRING OF LIFE GOSPEL MINISTRIES  filed  the notice of motion  dated 17th February, 2015 against the Respondent, HOLY  REDEEMED APOSTOLIC MINISTRIES  INTERNATIONAL, seeking  the striking  out of the defence and counter claim  filed by the Respondent. The Applicant  set out eight (8)  grounds on the application.  The  application is supported  by the affidavit of Jonathan A.O.  Wabala  sworn on 17th February, 2015 in which  he describes  himself  as a member and administrator  of the Applicant’s church.

The application is opposed through  the replying  affidavit  of Japheth Barua Kirori who described  himself  as the Mission Secretary  to the Respondent’s  church.

M/S. Omondi  and company advocates  and M/S. Olel, Onyango, Ingutiah and company advocates represented  the Applicant and Respondent respectively and filed written submissions.

The court  has carefully considered the grounds on the application, written submissions, supporting  and replying affidavits and find as follows;

1.      That the  Applicant commenced  this suit through the plaint  dated  14th January, 2015 praying  for eviction, permanent injunction  orders and costs against the Respondent  in relation to land parcel  South Teso/Angoromo/912. Prior  to this suit, the Respondent  had filed  Busia H.C.C.C. NO. 41 of 2011, through  originating summons  claiming the  same suit land under adverse possession but  lost as shown in this court’s judgment of 16th October, 2013.

2.      That the  Respondent  filed their statement of defence  and counter claim  dated 3rd February, 2015.  The Applicant  filed a reply to the defence  and also a defence to the counterclaim dated 12th February, 2015.

3. That the  court is alive to the various judicial decisions on the main legal principles which should  guide it  in determining applications  to strike out pleadings.  The principles were recently summarized  in Arabian  Airlines corporation services Ltd [2014] eKLR by Gikonyo J, at paragraph 17 as follows;

‘’17  I need not re-invent the wheel on the subject of striking out a defence. A  great  number  of judicial  decisions have now settled the legal principles which should guide the Court in determining whether  to strike out a pleading. Except, l can  state comfortably that these  principles now draw, not only from judicial precedent but from the principles of justice enshrined in the Constitution especially in article 47, 50 and 159. The first guiding principle is that, every Court of law should pay homage to its core duty of serving substantive justice in the  judicial proceeding before it, which  explains  the reasoning by Madan JA in the famous  DT Dobie casethat the Court should  aim at sustaining rather than terminating suit.  That  position  applies mutatis mutandis to a statement of defence  and courter-claim.  Secondly, and directly related  to the foregoing constitutional principle and policy, is that  courts should recognize  the act  of striking out a pleading (plaint or defence) completely  divests a party of a hearing, thus, driving  such  party away from the judgment seat; which is a draconian act   comparable only to the proverbial drawing  of the ‘’Sword of the   Damocles.’’  Therefore, the power  to strike out a suit or defence should  be used  sparingly and only on the clearest  of cases where the   impugned pleading is ‘demurer or something  worse than a demurer’      beyond redemption and not curable by even a amendment.  Thirdly, in   case of a defence, the court  must be convinced upon  looking at the   defence, that is a sham; it  raises  no bona fide  triable issue worth a trial by the court. And a triable issue need not be one which will succeed but one that passes theSHERIDAN  J. Test  in PATEL –V- E.A. CARGO HANDLING SERVICES LTD. [1974] E.A. 75 at P. 76 (Duffus P.)that’’…a triable  issue … is an issue which raises  a prima facie defence and which should go to trial for adjudication.’’

4.      That the Respondent’s  defence  to the Applicant’s claim  can be summarized to two grounds  as follows:

a)     That the Applicant is not the registered proprietor of the suit land South Teso/Angoromo/912.

b)     Alternatively, that the Applicant obtained registration of the suit land fraudulently.

The court  has taken note of the copy of the suit lands register and judgment  in Busia H.C.C.C. No. 41 of 2011 which  were filed  with  the plaint herein. The copy of the register  shows that the Applicant became the registered  proprietor of the suit land on 1st March, 2011 and under section  26 of the Land Registration  Act,  2012  the court is obligated to take its content as prima facie evidence that the Applicant, as the person named as proprietor of the land is the absolute  and indefeaside owner. The Respondent had  when filing the  originating summons in Busia H.C.C.C. NO. 41  of 2011  pleaded that the Applicant was  the registered owner of the suit land and it is  not clear  why they have changed that position.  The court  had pronounced  itself in the judgment  of 16th October, 2013  in Busia HCCC. NO. 41 of 2011as follows;

‘’      As possession is a matter of fact, the court finds the             Applicants have not adduced any evidence to show that the Respondents were dispossessed of the land or that their   possession of the land was discontinued  for a continuous period   of 12 years before the filing of this case.  From  the foregoing,  therefore, the court  finds that the Applicants have failed to prove their case on adverse possession against the Respondents to the standard required. The applicants case is therefore dismissed with costs.’’

This court’s  finding in the foregoing case has not been reviewed and or  successfully appealed against by the parties. The defence filed  by the Respondent  denying that the Applicant is the registered  proprietor of the suit land  do not therefore raise or disclose  any new  triable issue on ownership of the suit land in view  of the contents of the register and judgment in Busia H.C.C.C No. 41 of 2011.

5.     That the counterclaim by the Respondent  alleges fraud on the part of the Applicant. The Respondent  prays  for a declaration that the Applicant acquired  the land fraudulently.  The  Respondent  further prays that the Applicant’s  title to the suit land  should be cancelled and the land  reverts back .C.C.Hto the name  of Matayo Were.   The  Applicant  has disputed  the allegations of fraud  in their defence  to the counterclaim, insisting  that the due process was  followed  in their registration with the suit land.  The  Respondent  has not disclosed what interest  they have over the suit land or the relationship they have  with Matayo  Were, whom they pray the title to  the land should revert  back to.  The Respondent  would not have commenced their claim based on adverse possession against the Applicant  in Busia H.C.C.C. No. 41 of 2011 if they had not  been convinced that the Applicant  was the registered  proprietor of  the suit land.  The court  therefore   find that so long as the decision of the court in Busia H.C.C.C. No. 41 of 2011  remain  and in the absence of the Respondent showing  that they have any beneficial or  legal interest on the  suit  land, the counterclaim  does not disclose  any issues that could go for trial, in view  of the defence filed by the Applicant.

6.     That for reasons set out above, the court finds that the defence and counterclaim filed by the Respondent  herein do not disclose  triable issues to the Applicant’s  claim.  The  application  dated  17th February, 2015 is therefore  allowed  and the following orders  issued;

a)     The statement of defence  and counterclaim  filed by the Defendant, Holy Redeemed Apostolic  Ministries  International, dated 3rd February,  2015  are hereby struck out.

b)    The Defendant’s  suit vide the counterclaim dated 3rd February, 2015 is hereby dismissed with costs.

c)     The court enters judgment  in favour  of the Plaintiff  against  the Defendant  in terms of prayers (a) and (b)  of the plaint  dated 14th January, 2015 with costs.

It is so ordered.

S. M  KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 28th DAY OF MAY, 2015

IN THE PRESENCE OF;

PLAINTIFF/APPLICANT……ABSENT………………………………………………………..

DEFENDANT/RESPONDENT…………ABSENT……………………………………………………

COUNSEL…MR. JUMBA FOR WAFULA FOR PLAINTIFF/APPLICANT.…………………

JUDGE.