Town Council of Eldama Ravine v Salome Soti Tagi, Tom Kiptoo Chemjor & Kenneth Kibet Chemjor [2010] KEHC 4090 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT NAKURU

CIVIL CASE NO 54 OF 2006

TOWN COUNCIL OF ELDAMA RAVINE............................APPLICANT/DEFENDANT

VERSUS

SALOME SOTI TAGI................................................1ST RESPONDENT/1st PLAINTIFF

TOM KIPTOO CHEMJORSuing as legal Rep. of the late

Ruth W. Chemjor (Deceased).............2ND RESPONDENT/2nd PLAINTIFF

KENNETH KIBET CHEMJORSuing as legal Rep. of late

Ruth W. Chemjor (Deceased)............................3RDRESPONDENT/3RD PLAINTIFF

RULING

The applicant was sued by the respondents who sought a permanent injunction against it in respect of plot No.7224/11/213 UNS – Nursing school site, Eldama Ravine (the suit property), damages and costs of the suit. The respondents’ claim is based on a letter of allotment Ref.7224/11/213 dated 19th November, 1992.

By chamber summons dated 31st May, 2006, the applicant now seeks that the entire suit be struck out for the reason that:

“…..the entire suit does not contain and/or disclose any cause of action against the defendant.”

That ground is further explained that the respondents did not comply with the conditions of letter of allotment which lapsed after thirty (30) days from the date of issuance; that the letter of allotment does not amount to a title to property; that the respondents did notmeet the conditions stated in the letter of allotment; that the process of planning and allocation of the suit property was done without the input of the applicant; that the applicant has no powers to allocate, establish and maintain a school; that the subject property was not alienated by the Commissioner of Lands and is therefore still available for alienation.

The respondents have filed grounds of opposition in which it is argued that the application is bad in law, incurably defective and is an abuse of the court process; that the suit discloses a reasonable cause of action as the respondents’ wish in the suit is to protect their propriatory rights.

I have considered the arguments as well as the two authorities cited by the respondents’ counsel.

It is now settled that a plaint (or pleadings) can only be struck out under order 6 rule 13 if, among other this:

“(a) it discloses no reasonable cause of

action or defence

(b) …………………………………………….

(c) …………………………………….............

(d)…………………………………………….”

In the instant application, the ground upon which the applicant relies has been set out earlier on in this ruling, namely;

“That the entire suit does not contain and/or disclose any cause of action against the defendant.”

In D.T. Dobie & Co. (K) Ltd. Vs. Muchina case an application was declared incompetent for seeking that the suit to be struck out on the ground that it “disclosed no cause of action” whereas the rules provided for striking out the suit on the ground that it discloses “no reasonable cause of action” on that ground alone, this application fails. However, I wish to consider another aspect. In D.T. Dobie case, it was stated (obiter) by Mandan JA (as he then was), that in considering an application for striking out a suit, the court must not embark on the merits of the case as that is reserved only for the trial judge.

The contest regards the respondents’ title to the suit land. They were issued with an allotment letter. The applicant has argued that that letter does not confer title; that they were in breach of its terms; that the applicant cannot allocate land and that the property was not alienated by the Commissioner of Land. All these averments require evidence to be established and cannot be decided at this stage in this application. Secondly, the power to strike out is discretionary and can only be exercised in absolutely clear cases and where the court is convinced that the suit is completely hopeless. Lord Pearson stated the law in Drummond Jackson Vs. British Medical Association (1970)2 WLR 688 as follows:

“No exact paraphrase can be given but I think ‘reasonable cause of action’ means a cause of action with some chance of success when (as

H.C.C.C.NO.54/2006

required by paragraph (2) of the rule) only the allegations in the plaint are considered.”

At this stage, I am unable to say that the suit discloses no reasonable cause of action.

For these reasons the application fails and is dismissed with costs.

Dated, Signed and Delivered at Nakuru this 16th day of April, 2010.

W. OUKO

JUDGE