Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Case (originally filed 6/1/2010, High Court Machakos)· [2016] KEELC 948 (KLR)

Stephen King’oo Mbuti & 5 others v Malili Ranch Limited & 2 others [2016] KEELC 948 (KLR)

Environment and Land Court
18 March 2016
2,784 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

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

#
This ruling by S. Okong'o, J of the Environment and Land Court (Nairobi) disposes of the plaintiffs' amended Notice of Motion dated 12th April 2013 in a land suit filed on 6/1/2010 against the 1st defendant company concerning the sale of land comprised in LR No. 9918/3/9918/6, Machakos. The plaintiffs sought two orders: striking out the 1st defendant's statement of defence and entry of judgment against it, and barring the firm of E. K. Mutua and Co. Advocates from acting for the 1st defendant. The application, unsupported by any affidavit, relied partly on Waweru J.'s ruling of 28/9/2012 in a security-for-costs application, in which the judge observed that no statement of defence appeared to have been filed. The court held that the 1st defendant's defence filed on 8/1/2010 at the High Court Central Registry, Nairobi was regular and within time because the court file was then in Nairobi, and that Waweru J.'s remark was not a finding that no defence existed. Applying Order 2 Rule 15(1) of the Civil Procedure Rules and the D.T. Dobie test, the court held the defence raised triable issues not fit for striking out. On the disqualification limb, the court held the 1st defendant has a right to counsel of choice and that prior involvement in the sale transaction, absent demonstrated prejudice or conflict, is not a ground for removal. The application was dismissed with costs to the 1st defendant, with a direction that parties set the suit down for pre-trial conference.

Key legal issues

#
01

Validity and timeliness of the 1st defendant's statement of defence

Holding

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.

Reasoning

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.

p. 4
02

Whether the defence should be struck out under Order 2 Rule 15(1)

Holding

The defence raises triable issues and is not a candidate for striking out; the striking-out power is exercised sparingly.

Reasoning

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.

p. 4
03

Disqualification of E. K. Mutua and Co. Advocates

Holding

The application to disqualify the firm fails; no factual basis, prejudice or conflict of interest was established.

Reasoning

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.

p. 4

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. 1.The plaintiffs' amended Notice of Motion dated 12th April 2013 is dismissed with costs to the 1st defendant
  2. 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

Authorities

#

Legislation

  • Civil Procedure ActCap 21 Laws of Kenya
  • Civil Procedure RulesOrder 2 Rule 15(1); Order 13

Cases cited (2)

  • D.T. Dobie & Company (K) Ltd. vs. Muchina
    [1982] KLR 1
  • Murri vs. Murri and another
    [1991] E.A 209 (CAK)
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.