Dinah Jekemboi Bartilol & another v Martin S. Ngomat [2016] KEELC 1182 (KLR)
The bottom line
#A Kenyan court refused to strike out a land defendant's defence, ruling that procedural lapses like unserved defences can be forgiven and disputes with real issues must go to full trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the defence and counter-claim should be struck out for non-service
Striking out refused; the rule is discretionary and the non-service was explained by a change of advocates
Order 10 rule (3) permits striking out a defence not served, but its wording is not mandatory and leaves the court a discretion. Here appearance was served though the defence was not, and the change from Ngeywa & Co. Advocates to Barongo Ombasa & Co. Advocates explains the lapse. Article 159 of the Constitution and the overriding objective favour dispensing with procedural technicalities where no prejudice results.
Availability of summary judgment under Order 36 Rule 1(b) where a defence is on file
The procedure is unavailable once a defence has been filed; prayers for mesne profits and interest were misconceived
Order 36 Rule 1(1)(b) allows a plaintiff to apply for judgment for recovery of land, rent or mesne profits only against a defendant who has appeared but not filed a defence. Since the respondent had entered appearance and filed a defence, the applicants could not invoke the provision, rendering the summary judgment route, including the mesne profits and interest prayers, misconceived.
Whether the defence raises triable issues
The defence raises serious triable issues and was not struck out
The respondent entered a sale agreement dated 27.12.2005, was put in possession, and though he did not complete payment, later opted to take a smaller acreage. Whether that agreement binds the parties cannot be resolved on an interlocutory application. A defence may only be struck out where it is hopeless and unamendable, which is not demonstrated here.
Legal principles established
#- A plaintiff may only apply for summary judgment under Order 36 Rule 1(b) for recovery of land where the defendant has entered appearance but has not filed a defence.
- Order 10 rule (3) is discretionary and not mandatory; a defence will not be struck out merely for non-service where no prejudice is caused, in line with Article 159.
- A defence can only be struck out if it is hopeless and no amendment can save it; a defence raising serious triable issues must be allowed to stand.
Court orders
#- 1.The applicants' notice of motion dated 13.7.2015 is dismissed in its entirety
- 2.Costs of the application to the respondent
- Jurisdiction invoked
- Environment and Land Court jurisdiction over the suit land; application under Order 36 rule 1(b), Order 10 rule 3 and section 63(c) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dinah Jekemboi Bartilol & another v Martin S. Ngomat [2016] KEELC 1182 (KLR)", Case Analysis (2016). Land Case No. 39 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1182/eng@2016-01-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.