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ELCOtherNot stated in the judgment· [2016] KEELC 991 (KLR)

Judetheus Kiplagat Malakwen v Norman Kibitok Kogo [2016] KEELC 991 (KLR)

High Court of Kenya
19 February 2016
AOAntony Ombwayo
1,456 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court spared a defendant's weak land defence, giving him 10 days to fix it with a customary trust claim or lose.

What this practically means

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Executive summary

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The plaintiff, registered owner of land parcel Nandi/Kebulonik/251 since 1969, sued the defendant claiming that the defendant encroached on approximately ¼ acre of the parcel in 2013. He sought an order for vacant possession, an injunction against re-entry, and costs. By Notice of Motion dated 16.6.2014, the plaintiff sought to strike out the defendant's defence on the ground that it disclosed no reasonable defence, contending that his title was unimpeached and the defendant a trespasser. The defendant opposed, asserting the land was family land belonging to his grandmother, Veronica Chebichii Kogo, and that ownership disputes were pending in other superior courts, including Eldoret Civil Appeal No. 82 of 2006 and Eldoret High Court No. 82 of 2006. Justice Antony Ombwayo held that the existence of other disputes did not confer any right on the defendant, who claimed neither trust nor adverse possession and had not sought amendment of his defence. Applying the settled principles in D.T. Dobie vs Muchina and Blue Shield Insurance vs Oguttu, the court reiterated that the power to strike out pleadings is discretionary, to be exercised sparingly and only where a pleading is clearly untenable, and without expressing views on the merits. Although the defence as pleaded disclosed no cause of action, the court declined to shut the defendant out of the seat of justice, holding it amendable to raise customary trust. The defendant was given 10 days to amend and serve an amended defence, failing which the defence would stand struck out with costs. Delivered at Eldoret on 19 February 2016.

Key legal issues

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01

Striking out of a defence for failure to disclose a reasonable defence

Holding

The defence as it stands does not disclose a cause of action, but rather than striking it out immediately, the defendant is granted leave to amend to plead customary trust

Reasoning

The court applied the settled principles in D.T. Dobie vs Muchina and Blue Shield Insurance that striking out is discretionary, to be exercised sparingly, after consideration of all facts and without embarking on the merits. The existence of other disputes over ownership did not confer the defendant a right over the property; he claimed no trust or adverse possession and had not sought amendment. Equity favoured allowing amendment rather than driving him from the judgment seat.

p. 2
02

Effect of pending related suits on the defendant's claim

Holding

The existence of other disputes in court does not confer the defendant a right on the property

Reasoning

The defendant relied on pending litigation between third parties (Veronica Chebichii Kogo/Korir and the plaintiff) to justify his occupation. The court held that those suits do not, by themselves, establish any right in the defendant, who is not claiming trust or adverse possession and had not applied to amend his defence.

p. 2

Legal principles established

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  • The power to strike out a pleading which drives a party from the judgment seat should be used sparingly and only where the pleading is clearly untenable, and the court must not embark on the merits

Court orders

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  1. 1.The defendant is given 10 days to amend and serve his amended defence to the plaintiff
  2. 2.Failure to amend, the defence stands struck out with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 6 rule 13(1)(a)

Cases cited (3)

  • Blue Shield Insurance Company Ltd vs. Joseph Mboya Oguttu
    [2009] eKLR
  • D.T. Dobie and Company (Kenya) Ltd vs Muchina
    (1982) KLR 1
  • Cail Zeiss Stiftung vs Ranjuer & Keeler Ltd and others (No.3)
    (1970) ChpD 506
Jurisdiction invoked
Original civil jurisdiction of the High Court over land claims; application under Order 6 rule 13(1)(a) of the Civil Procedure Rules to strike out a defence

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, "Judetheus Kiplagat Malakwen v Norman Kibitok Kogo [2016] KEELC 991 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/991/eng@2016-02-19

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