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ELCDismissedNot stated in judgment (application dated 23 January 2013 in a suit filed by plaint on 11 April 2011)· [2016] KEELC 455 (KLR)

Mary Chelangat Togom v David K. Soi (Civil Case 84 of 2011) [2016] KEELC 455 (KLR)

Environment and Land Court
21 September 2016
MSMunyao Sila
1,239 words in judgment
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The bottom line

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A Nakuru land court refused to give a registered owner instant judgment, ruling that disputed land claims must go to full trial.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Nakuru on the plaintiff's application dated 23 January 2013, brought under Order 36 Rule 1(1)(b) of the Civil Procedure Rules, 2010, seeking summary judgment against the defendant as prayed in the plaint filed on 11 April 2011. The plaintiff pleaded she was the registered owner of parcel Nakuru/Tinet Sotik Settlement Scheme/925, having purchased it from one Erastus Maina and obtained title on 15 November 2006, and that the defendant invaded the land in March 2011. She sought permanent injunction, mesne profits and costs. The defendant, a member of the Ogiek clan, opposed, asserting he had lived on the land for over 40 years and that the Government allocated it to him in 2007; he raised a preliminary objection under Section 6 of the Civil Procedure Act citing the earlier, still-pending suit Nakuru HCCC No. 125 of 2007, and later filed a statement of defence and counterclaim. The court held that a triable issue existed as to whether the plaintiff's title was good or whether the defendant was entitled to the land, that summary judgment is only entered in the clearest of cases, and that it would be harsh to deny the defendant a defence given he had defended the earlier suit. Although the defence and counterclaim were improperly filed while the application was pending, the court admitted them and deemed them properly filed. The application was dismissed with costs to the defendant.

Key legal issues

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01

Whether the plaintiff's registered title entitled her to summary judgment

Holding

No; the defendant's assertion that the land was allocated to him raises a triable issue as to whose title is good, making summary judgment unsuitable

Reasoning

The plaintiff premised the application on her registration as owner and the defendant's lack of justifiable cause. The defendant, however, claims the land was allocated to him by the Government in 2007 and annexed a letter of allocation, and in the earlier suit Nakuru HCCC No. 125 of 2007 he filed a defence. It would be harsh to deny him the chance to defend this suit when he defended the earlier one.

p. 2
02

Whether the defence and counterclaim filed while the summary judgment application was pending should be struck out

Holding

They were improperly filed but, in the court's discretion, they were admitted and deemed properly filed

Reasoning

The court noted the defendant ought to have shown cause that he was entitled to defend rather than file a defence while the application was pending, but chose not to strike them out and instead admitted them, directing that the parties litigate on the pleadings on record.

p. 2

Legal principles established

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  • Summary judgment is reserved for the clearest of cases where the defendant has no defence or claim over the subject matter; where a defendant asserts a genuine claim to the land, he is entitled to have that claim tried

Court orders

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  1. 1.The application dated 23 January 2013 for summary judgment is dismissed
  2. 2.The defence and counterclaim, though improperly filed, are admitted and deemed properly filed
  3. 3.Parties to litigate on the basis of the plaint, defence and counterclaim, and the reply to defence and defence to counterclaim on record
  4. 4.Defendant to have the costs of the application

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 36 Rule 1(1)(b)
  • Civil Procedure ActSection 6
Jurisdiction invoked
Order 36 Rule 1(1)(b) of the Civil Procedure Rules, 2010 (application for summary judgment)

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, "Mary Chelangat Togom v David K. Soi (Civil Case 84 of 2011) [2016] KEELC 455 (KLR)", Case Analysis (2016). Not stated in judgment (application dated 23 January 2013 in a suit filed by plaint on 11 April 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/455/eng@2016-09-21

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