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ELCDismissedNot stated in the judgment (Bondo ELC suit; related suit Bondo PMCC No.69 of 2007)· [2016] KEELC 700 (KLR)

Tom Jillyanus Akun v Betheseba Mora & 4 others [2016] KEELC 700 (KLR)

Environment and Land Court
6 July 2016
SKS.M. Kibunja
858 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land owner failed to strike out a defendant's defence because allegations of a forged title must be tested at a full hearing, not decided on paper.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Bondo (S.M. Kibunja J) on the plaintiff's notice of motion dated 5th December 2015, in which Tom Jillyanus Akun sought to strike out the 2nd Defendant Odhiambo Ramogi's defence and enter interlocutory judgment against all five Defendants in a land dispute over South Sakwa/Barkowino/4785, of which he claimed to be registered proprietor since 17th October 2011, alleging the Defendants unlawfully moved onto the land and erected structures. The 2nd Defendant filed no replying papers, and the application was urged unopposed on 19th May 2016. The court framed three issues: whether the 2nd Defendant's defence disclosed triable issues, whether interlocutory judgment should be entered against the 1st and 3rd to 5th Defendants, and costs. Examining the record, the court noted that interlocutory judgment had already been entered against the 3rd and 4th Defendants on 11th April 2013 and against the 1st Defendant on 23rd July 2013, all pending formal proof which had not taken place, so the plaintiff should set the suit down for hearing rather than seek duplicate judgments. The claim against the 5th Defendant had been withdrawn on 20th February 2014, so no judgment could be entered against him. The 2nd Defendant's amended defence disputed the plaintiff's ownership, alleged the title was a forgery and the land subdivided, and pleaded a pending suit (Bondo PMCC No.69 of 2007), raising triable issues fit for full hearing. The application was dismissed with the plaintiff bearing his own costs.

Key legal issues

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01

Whether the 2nd Defendant's defence should be struck out for failing to disclose triable issues

Holding

The defence was neither vague nor evasive; it disputes ownership, alleges forgery of the title, alleges subdivision of the suit land, and pleads a pending suit, and therefore raises triable issues.

Reasoning

The court reviewed the amended defence of 19th April 2013 and found it specifically took issue with the plaintiff's claim: disputing the plaintiff's ownership, alleging the title is a forgery, alleging the land has been subdivided, citing a pending suit (Bondo PMCC No.69 of 2007), and challenging the amendment of the plaint. Such matters require a full hearing and cannot be resolved summarily.

p. 2
02

Whether interlocutory judgment should be entered against the 1st, 3rd, 4th and 5th Defendants

Holding

No. Interlocutory judgment already stood against the 1st, 3rd and 4th Defendants pending formal proof, and the claim against the 5th Defendant had been withdrawn.

Reasoning

The court found interlocutory judgments entered on 11th April 2013 (3rd and 4th Defendants) and 23rd July 2013 (1st Defendant) pending formal proof which had not taken place, so entering further judgment served no purpose. The claim against the 5th Defendant was withdrawn on 20th February 2014 with leave, so no case was pending against him.

p. 2

Legal principles established

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  • A defence that takes issue with the plaintiff's claim on specific areas, such as disputing title and alleging forgery, raises triable issues and cannot be struck out or summary judgment entered
  • Interlocutory judgment already entered pending formal proof cannot be duplicated; the plaintiff must set the suit down for formal proof

Court orders

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  1. 1.Notice of motion dated 5th December 2015 dismissed
  2. 2.Plaintiff to bear his own costs of the application in any event
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (suit concerning South Sakwa/Barkowino/4785)

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, "Tom Jillyanus Akun v Betheseba Mora & 4 others [2016] KEELC 700 (KLR)", Case Analysis (2016). Not stated in the judgment (Bondo ELC suit; related suit Bondo PMCC No.69 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/700/eng@2016-07-06

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