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ELCPartially AllowedNot stated in the judgment (notice of motion dated 31st July 2015; plaint dated 29th April 2015)· [2016] KEELC 343 (KLR)

Ruth Adhiambo Okoth v Ottoman Adel [2016] KEELC 343 (KLR)

Environment and Land Court
2 November 2016
SKS.M. Kibunja
933 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a landowner's defence for merely repeating the claim, warning that vague defences will not save you from judgment.

What this practically means

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Executive summary

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The Applicant, Ruth Adhiambo Okoth-Ogendo, administratrix of the estate of the late Professor H.W.O. Okoth-Ogendo, moved the court by notice of motion dated 31st July 2015 seeking striking out of the Defendant's statement of defence dated 30th June 2015 and entry of judgment in terms of prayers (a), (b) and (c), with the suit proceeding to assessment of damages under prayer (d). Her claim, particularised in the plaint dated 29th April 2015, was that the Defendant had, without consent, constructed, fenced off and erected an electricity pole on the northern portion of land parcel Kisumu/Kasule/2664 belonging to the estate. The Respondent, Dr. Adel Ottoman, filed a response but did not attend the hearing on 14th July 2016 despite service. The court, invoking Order 2 Rule 15 and Order 51 Rule 1 of the Civil Procedure Rules 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act, framed four issues: whether the defence raised triable issues, whether it should be struck out, whether judgment should be entered as sought, and costs. It held the defence did not traverse the allegations of fact, merely paraphrased the plaint, was evasive and disclosed no reasonable defence, and further that no witness statements or lists of documents had been filed contrary to Order 7 rule 5. Relying on Banquez Indosuez v D.J. Lowe & Co Ltd and Ragbir Singh Chatte v National Bank of Kenya Ltd, the court struck out the defence, entered interlocutory judgment with the suit to proceed to formal proof on all prayers, directed service of hearing notices on the Defendant, and ordered costs of the application to be in the cause.

Key legal issues

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01

Whether the statement of defence raises triable issues

Holding

The defence does not raise triable issues because it does not specifically respond to or traverse the plaintiff's claim.

Reasoning

The court found the defence was coached as if it were a claim of the defendant's own, contained no traverse or general denial of the specific claims in the plaint, and merely paraphrased the contents of the plaint. Such an evasive defence is not a reasonable defence and fails the requirements in the authorities cited by the plaintiff.

p. 2
02

Whether the defence should be struck out under Order 2 Rule 15

Holding

The defence was struck out as it disclosed no reasonable defence in law.

Reasoning

Order 2 Rule 15 empowers the court at any stage to strike out a pleading that discloses no reasonable cause of action or defence, is scandalous, frivolous or vexatious, may prejudice, embarrass or delay fair trial, or is otherwise an abuse of process. The defence fell within these grounds, and no witness statements or document lists had been filed with it contrary to Order 7 rule 5.

p. 2

Legal principles established

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  • A defence that merely paraphrases the plaint and does not traverse the allegations of fact does not raise triable issues and may be struck out under Order 2 Rule 15.

Court orders

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  1. 1.The Defendant's statement of defence dated 30th June 2015 is struck out for failure to disclose triable issues.
  2. 2.Interlocutory judgment is entered and the suit to be fixed for formal proof on all the prayers.
  3. 3.Costs of the application to be in the cause.
  4. 4.If the date for formal proof is fixed without the involvement of the Defendant, the Plaintiff to ensure hearing notices are served on him as required.

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 2 Rule 15
  • Civil Procedure Rules 2010Order 51 Rule 1
  • Civil Procedure Rules 2010Order 7 rule 5
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (2)

  • Banquez Indosuez –V- D.J. Lowe & Company Limited
    [2006] eKLR
  • Ragbir Sigh Chatte –V National Bank of Kenya Limited
    [1996] eKLR
Jurisdiction invoked
Order 2 Rule 15 and Order 51 Rule 1 of the Civil Procedure Rules 2010; Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Ruth Adhiambo Okoth v Ottoman Adel [2016] KEELC 343 (KLR)", Case Analysis (2016). Not stated in the judgment (notice of motion dated 31st July 2015; plaint dated 29th April 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/343/eng@2016-11-02

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