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ELCPartially AllowedCivil Case No 83 of 2011· [2016] KEELC 1107 (KLR)

Joyce Irene Atieno Akeyo v Michael George Okeyo & 4 others [2016] KEELC 1107 (KLR)

Environment and Land Court
29 January 2016
SOS. OKONG’O
2,214 words in judgment
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The bottom line

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A Nairobi court ordered a woman to vacate a Langata property within 60 days because she never filed a defence to the buyer's counter-claim.

What this practically means

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Executive summary

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The plaintiff, wife of the 1st defendant and in occupation of L.R. No. Nairobi/Block 72/700 Onyonka Langata, sued for a permanent injunction, cancellation of the 3rd defendant's registration and general damages, alleging the 1st defendant fraudulently transferred the suit property to the 2nd defendant and then to the 3rd defendant to defeat her rights over her matrimonial home. Only the 3rd defendant filed a defence and counterclaim, averring she bought the property for Kshs.8,500,000/= from the 2nd defendant, obtained a certificate of lease on 19th January 2011 free of encumbrances, and was a bona fide purchaser. She counterclaimed for a declaration of sole ownership, vacant possession, a permanent injunction, mesne profits at Kshs.54,000/= per month, special damages of Kshs.200,000/= and general damages. A previous ruling by Nyamweya J. (23rd October 2013) ordered the plaintiff to deposit Kshs.1,000,000/= as security for costs, which she did not do. Before Okong'o J. was the 3rd defendant's Notice of Motion dated 2nd July 2014 seeking summary judgment on the counter-claim, eviction and a mandatory injunction. The plaintiff filed no replying affidavit, grounds of opposition or defence to the counter-claim, and her advocates ceased to appear. The court, citing Hasmani, Kundanlal Restaurant and Postal Corporation of Kenya, held that where no defence is shown, it has no discretion on summary judgment. Summary judgment was entered for the 3rd defendant on prayers (a), (b) and (c) of the counter-claim; the plaintiff was given 60 days to vacate; the remaining prayers were set down for formal proof and costs deferred.

Key legal issues

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01

Whether summary judgment was merited on the uncontroverted counter-claim

Holding

Summary judgment entered for the 3rd defendant in terms of prayers (a), (b) and (c) of the counter-claim because the plaintiff filed no defence to the counter-claim and no replying affidavit or grounds of opposition to the application

Reasoning

The court found no reply to the defence and defence to counter-claim on the file, so the counter-claim was uncontroverted. The plaintiff also filed no replying affidavit or grounds of opposition to the application and her advocates appeared only to say they no longer had instructions and then failed to file an application to cease acting. With no defence on record, the established summary judgment principles left the court no discretion but to enter judgment for the 3rd defendant on the ownership, vacant possession and injunction prayers.

p. 3
02

Principles governing applications for summary judgment

Holding

The court applied the settled principle that a defendant showing a bona fide triable issue must be allowed to defend unconditionally, citing Hasmani vs. Banque du Congo Belge, Kundanlal Restaurant vs. Devshi & Company and Postal Corporation of Kenya vs. Inamdar

Reasoning

The court reviewed the authorities on summary judgment and extracted the common thread: where a bona fide triable issue is shown, the party must be permitted to defend. However, on the facts there was no defence before the court at all, so the triable-issue test did not assist the plaintiff. The court distinguished between the case where a defence raises a triable issue (discretion to allow defence) and the case where no defence is shown (no discretion).

p. 3

Legal principles established

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  • If a defendant's defence raises even one triable issue, summary judgment cannot be entered and the defendant is entitled to defend the suit
  • Where no defence is shown or established to a counter-claim, the court has no discretion in considering an application for summary judgment

Court orders

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  1. 1.Summary judgment entered for the 3rd defendant against the plaintiff in terms of prayers (a), (b) and (c) of the 3rd defendant's amended defence and counter-claim dated 19th November 2012
  2. 2.The plaintiff to vacate and hand over possession of the suit property to the 3rd defendant within sixty (60) days from the date of service of the decree extracted from the judgment, failing which the 3rd defendant may apply for her forceful eviction
  3. 3.The 3rd defendant to set down the counter-claim for formal proof with respect to prayers (d), (e) and (f) thereof
  4. 4.Costs of the counter-claim to await the determination of the remaining prayers

Authorities

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Cases cited (3)

  • Hasmani vs. Banque du Congo Belge
    (1938) 5 E.A.C.A 89
  • Kundanlal Restaurant vs. Devshi & Company
    [1952] 19 E.A 77
  • Postal Corporation of Kenya vs. Inamdar & 2 others
    [2004] 1 KLR 359
Jurisdiction invoked
First-instance suit under the Environment and Land Court's original jurisdiction over disputes relating to land (no specific provision cited in the 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, "Joyce Irene Atieno Akeyo v Michael George Okeyo & 4 others [2016] KEELC 1107 (KLR)", Case Analysis (2016). Civil Case No 83 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1107/eng@2016-01-29

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