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ELCPartially AllowedNot stated in the judgment (suit concerns LR No. Limuru/Bibirioni/4232)· [2015] KEELC 558 (KLR)

Jeremiah Mugwe Njoroge v Rose Mugure Kamau (? 628 of 2013) (Environment and Land) [2015] KEELC 558 (KLR)

Environment and Land Court
9 February 2015
PNP. Nyamweya
1,069 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a land defendant's defence for targeting the wrong parcel, but still required the plaintiff to prove ownership through a hearing.

What this practically means

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Executive summary

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The Plaintiff filed a Notice of Motion dated 28th November 2013 under Order 2 Rule 15(1) of the Civil Procedure Rules seeking to strike out the Defendant's Statement of Defence filed on 3rd July 2013, entry of judgment as prayed in the Plaint, and costs. The suit concerned LR No. Limuru/Bibirioni/4232, registered in the Plaintiff's name, with a claim for the Defendant's eviction. The Plaintiff argued that the Defence addressed a different, non-existent parcel, LR No. Limuru/Bibirioni/1572, and that the Defendant had filed no reply or submissions in response to the application. The court, P. Nyamweya J, framed two issues: whether the Defence should be struck out as disclosing no reasonable defence, and whether judgment should follow. Applying the D.T. Dobie & Company (Kenya) Ltd v Muchina test that striking out is a remedy to be used sparingly, the court found the Defence directed at Limuru/Bibirioni/1572 and silent on its relationship to the suit property, rendering it incapable of answering the Plaintiff's claim; it was struck out. However, the court declined to enter judgment because the Plaintiff had not attached his title and official search for the suit property, leaving his ownership unestablished. The suit was directed to proceed to formal proof under Order 10 Rules 9 and 10, with the costs of the motion to be in the cause.

Key legal issues

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01

Whether the Defence disclosed a reasonable defence to the Plaintiff's claim over LR No. Limuru/Bibirioni/4232

Holding

The Defence was struck out because it addressed LR No. Limuru/Bibirioni/1572, not the suit property, and did not plead the relationship between the two parcels

Reasoning

The court applied Order 2 Rule 15(1) of the Civil Procedure Rules and the D.T. Dobie test that pleadings should only be struck out in plain and obvious cases. The Defendant's Defence claimed in respect of Limuru/Bibirioni/1572 rather than the suit property Limuru/Bibirioni/4232 and did not plead the relationship between the two parcels. It therefore could not answer the Plaintiff's claim and disclosed no reasonable defence. The Defendant filed no response or submissions to the application.

p. 2
02

Whether judgment on the Plaint should be entered for the Plaintiff

Holding

Judgment was not entered; the suit was to proceed to formal proof because ownership of the suit property was not established

Reasoning

Although the Defence was struck out, the court declined to enter judgment as prayed. The Plaintiff had not attached to the application the copies of his title to LR No. Limuru/Bibirioni/4232 and the certificate of official search indicated in his list of documents dated 27th May 2013. His ownership of the suit property was therefore not established, and the suit was directed to proceed to hearing for formal proof under Order 10 Rules 9 and 10 of the Civil Procedure Rules.

p. 2

Legal principles established

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  • The power to strike out pleadings should be used sparingly and cautiously, and the overriding consideration is whether the pleading raises triable issues

Court orders

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  1. 1.The Statement of Defence filed by the Defendant on 3rd July 2013 struck out for not disclosing any reasonable defence
  2. 2.The Plaintiff to forthwith set the suit for hearing for purposes of formal proof
  3. 3.Costs of the Notice of Motion dated 28th November 2013 to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)
  • Civil Procedure RulesOrder 10 Rules 9 and 10

Cases cited (1)

  • D.T. Dobie & Company (Kenya) Ltd. v. Muchina
    [1982] KLR 1
Jurisdiction invoked
Order 2 Rule 15(1) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jeremiah Mugwe Njoroge v Rose Mugure Kamau (? 628 of 2013)  (Environment and Land) [2015] KEELC 558 (KLR)", Case Analysis (2015). Not stated in the judgment (suit concerns LR No. Limuru/Bibirioni/4232). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/558/eng@2015-02-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.