The Attorney General v Emfil Limited & 1 other
The bottom line
#Kenya's Court of Appeal reinstated most defendants' defences in a Mombasa land case but barred the Government from re-litigating title issues it had already lost.
What this practically means
#Executive summary
#Key legal issues
#Reliance on affidavit evidence in a striking-out application
The trial Judge erred in relying on a replying affidavit to find that the Defendants' parcels were on the same land as Emfil Ltd's, contrary to Order 2 Rule 15(2); there was a triable issue as to the identity of the land requiring a full trial
Order 2 Rule 15(2) bars evidence on a striking-out application under subrule (1)(a). The trial Judge relied on Emfil Ltd's replying affidavit to conclude the Defendants' parcels coincided with Emfil's land, thereby embarking on the merits at an interlocutory stage. Since the Defendants were strangers to the prior litigation determining Emfil's title, whether their parcels fell under those decisions was a triable issue to be decided at a full trial.
Res judicata as against the Attorney General's defence
The Attorney General's defence was res judicata and an abuse of process because Emfil's title and the legality of the settlement scheme had been conclusively determined in prior litigation to which the Attorney General was a party; striking out that defence was proper
The Court of Appeal in Emfil Ltd v Registrar of Titles (2014) had quashed the Gazette Notice revoking Emfil's titles, ordered reinstatement, and prohibited allotment, holding the properties were private land that the Government could not allocate to squatters. The Attorney General was a party to those proceedings. Its defence raising the same issues was barred by res judicata and was untenable, so the trial Judge did not err in striking it out and entering judgment.
First appellate court's role and interference with discretion
The Court applied the Selle v Associated Motor Boat principles as a first appellate court and the East African Underwriters principles on interfering with discretionary decisions
As a first appeal from the ELC, the appeal proceeded by way of retrial, permitting the Court to re-evaluate the material. On discretion, interference was warranted where the judge misdirected herself in law, misapprehended the facts, took into account irrelevant considerations or failed to take relevant ones, or where the decision was plainly wrong. The trial Judge's reliance on affidavit evidence amounted to a misdirection justifying interference.
Legal principles established
#- If a defence raises even one bona fide triable issue, the defendant must be given leave to defend; striking out is reserved for clearly untenable or sham defences
- On an application to strike out pleadings, no evidence is admissible and the court must not embark on the merits of the case
- Issues already conclusively determined by a court of competent jurisdiction in proceedings to which a party was privy are res judicata and cannot be re-litigated in a defence
Court orders
#- 1.Set aside the orders of the trial Court in the ruling delivered on July 20, 2017 that struck out the defences filed by the 154th, 157th, 158th, 161st, 166th, 167th, 12th, 142nd, 145th, 147th, 149th, 239th, 241st, 283rd, 293rd, 306th, 308th and 318th Defendants and entered judgment for Emfil Ltd as against the said Defendants
- 2.Upheld and confirmed the orders striking out the defences of the 1st to 7th Defendants and entering judgment for Emfil Ltd as against the 1st to 7th Defendants
- 3.Ordered that each party bears their costs of the applications dated September 28, 2016 and February 1, 2017 and of the appeal
- On appeal from
- Environment and Land Court at Mombasa
- Environment and Land Court Case No 113 of 2015
- Jurisdiction invoked
- First appellate jurisdiction under the Appellate Jurisdiction Act (Section 3(2) invoked); appeal against a ruling of the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Attorney General v Emfil Limited & 1 other", Case Analysis (2023). Court of Appeal at Mombasa, appeal against ruling in Environment and Land Court Case No 113 of 2015 (memorandum of appeal dated June 3, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/428/eng@2023-04-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.