Stephen King’oo Mbuti & 5 others v Malili Ranch Limited & 2 others [2016] KEELC 948 (KLR)
The bottom line
#A Kenyan land court refused to strike out a company's defence, ruling it raised real issues for trial and that parties may keep their chosen advocate absent shown prejudice.
What this practically means
#Executive summary
#Key legal issues
#Validity and timeliness of the 1st defendant's statement of defence
The defence filed on 8/1/2010 at the Nairobi Central Registry was regular, proper and filed within time since the court file was then in Nairobi.
The court noted that when the defence was filed the file had been transferred to Nairobi, so the defendant could not have filed at Machakos. A receipt dated 8/1/2010 was issued and there was no evidence of forgery. Waweru J.'s observation was carefully worded as an appearance and the issue was not before him for determination.
Whether the defence should be struck out under Order 2 Rule 15(1)
The defence raises triable issues and is not a candidate for striking out; the striking-out power is exercised sparingly.
Order 2 Rule 15(1) permits striking out only where a defence is unreasonable, scandalous, frivolous, vexatious, embarrassing or an abuse of process. The 1st defendant's defence denying sale of the plaintiffs' allotted portions and raising the completed transaction was not within those categories and should go to trial.
Disqualification of E. K. Mutua and Co. Advocates
The application to disqualify the firm fails; no factual basis, prejudice or conflict of interest was established.
The application was not supported by an affidavit, so no factual foundation was laid. A party has a constitutional right to counsel of its own choice, deniable only for good cause. Prior involvement in the sale transaction alone does not disqualify the advocate, and the plaintiffs alleged no possible conflict of interest.
Legal principles established
#- A statement of defence filed where the court file actually sits (Nairobi, while the file was transferred from Machakos) with a proper court receipt is regular and filed within time.
- A prior judge's observation that it 'appeared' no defence had been filed is not a finding that no defence was filed, and a ruling on a different issue cannot be relied on to strike out a defence.
- That an advocate acted for a party in the underlying transaction is not, without more, a ground to disqualify the advocate from acting for that party in subsequent litigation; prejudice or conflict must be shown.
Court orders
#- 1.The plaintiffs' amended Notice of Motion dated 12th April 2013 is dismissed with costs to the 1st defendant
- 2.The parties should take steps to set down the suit for pre-trial case conference with a view to having the suit heard and determined on merit
- Jurisdiction invoked
- Environment and Land Court jurisdiction; Civil Procedure Act (Cap 21) and Civil Procedure Rules, Order 2 Rule 15(1)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen King’oo Mbuti & 5 others v Malili Ranch Limited & 2 others [2016] KEELC 948 (KLR)", Case Analysis (2016). ELC Case (originally filed 6/1/2010, High Court Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/948/eng@2016-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.