Stephen Kamau Kinyanjui & Susan Njambi Kamau (Suing as legal representatives of the estate of Kamau Gikonyo deceased) v James Esbon Mwangi Maigua & George Ambogo Marita [2019] KEELC 2834 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT AT MILIMANI

ELC  CASE NO. 1065 OF 2016

STEPHEN KAMAU KINYANJUI................................................................1ST PLAINTIFF

SUSAN NJAMBI KAMAU.........................................................................2ND PLAINTNIFF

(Suing as legal representatives of the estate of Kamau Gikonyo deceased)

=VERSUS=

JAMES ESBON MWANGI MAIGUA.......................................................1ST DEFENDANT

GEORGE AMBOGO MARITA.................................................................2ND DEFENDANT

RULING

1. The Applicants are the administrators of the estate of the late Kamau Gikonyo (Deceased). The deceased bought shares at New Roysambu Housing Company Limited pursuant to which he was allocated a plot which is now registered in the name of the 1st Defendant/Respondent as LR No. 116/999 (suit property). The 1st Defendant/Respondent purchased the suit property form the 2nd Defendant/Respondent who purported to have purchased the same from the “administrators” of the estate of the deceased.

2. The Applicants filed a Notice of Motion dated 18th October, 2018 in which they seek striking out of the defences filed by the Defendants/Respondents and entry of judgment as per the plaint. The Applicants contend that the defences filed herein do not raise any triable issues and that they should be struck out and judgment entered in favour of the Applicants as per the plaint to save on Court’s time.

3. The 1st Defendant/Respondent opposed the Applicants application based on a replying affidavit sworn on 12th March, 2019. The 1st Respondent further contends that the Court ordered joinder of Roysambu Housing Co-operative Society Limited as third Defendant but the Applicants have not bothered to amend the plaint to include it as a third Defendant.

4. I have considered the Applicants’ application as well as the opposition to the same by the 1st Respondent. The only issue for determination is whether the defences filed herein should be struck out. Striking out of a pleading is a drastic action which can only be allowed in a clear case. In the instant case, the 1st Respondent contends that he is an innocent purchaser for value and that he should be heard.

5. The 1st Respondent purchased the suit property from the 2nd Respondent. Though the 2nd Respondent has conceded that he purchased the suit property from persons who purported to be administrators of the estate of the deceased, the 1st Respondent states in his defence that he was not aware of any defects in the interest he purchased from the 2nd Respondent. It is therefore clear that the 1st Respondent’s defence raises a triable issue and cannot be struck out. I therefore find no merit in the Applicant’s application which is dismissed with costs to the 1st Respondent.

It is so ordered.

Dated, Signed and delivered at Nairobi on this 27th day of June, 2019.

E.O.OBAGA

JUDGE

Mr. Kangata for Mr. Nyangau for Plaintiff.

M/s Njagi for Mr. Kimathi for 1st Defendant.

Court Assistant Hilda.