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ELCDismissedNot stated in judgment· [2016] KEELC 1291 (KLR)

Margaret Ngina Kamau v Christophe Karanja Muchai & another [2016] KEELC 1291 (KLR)

Environment and Land Court
28 October 2016
MGMary M. Gitumbi
886 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to strike out a defence because claims of coercion over a Kshs 9.7 million debt agreement must be tested at a full trial.

What this practically means

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Executive summary

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The Plaintiff, Margaret Ngina Kamau, moved the court by Notice of Motion dated 5th March 2015 seeking to strike out the Defendants' Statement of Defence and to have judgment entered as prayed in the Plaint. She relied on an Agreement dated 28th September 2013 in which the Defendants acknowledged owing her Kshs. 9,700,000/-, payable in instalments of Kshs. 800,000/- three times a year, with a 10% penalty on late payment. The 1st Defendant, Christopher Karanja Muchai, opposed the application in a Replying Affidavit, asserting he had a good and meritorious defence raising triable issues. He blamed the Plaintiff for withholding the title deed to the suit property, frustrating their ability to obtain bank financing, and contended that they were coerced by duress - because they operated a school on the suit property - into admitting an unfair and unjust debt. The court framed the sole issue as whether the Defence should be struck out on the basis that the Agreement constituted an admission of liability. Applying Order 2 Rule 15(1) of the Civil Procedure Rules, 2010, and the principle that striking out is a drastic remedy reserved for plain and obvious cases, the court held that the validity of the Agreement - challenged on grounds of duress to which the Plaintiff did not respond - was a triable issue requiring a full trial. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether a defence should be struck out where the defendant admits the agreement but alleges duress in its formation

Holding

No - the allegation of duress rendering the agreement invalid raises a triable issue that can only be resolved at a full trial

Reasoning

Both parties concede the agreement of 28th September 2013 was entered into, but the defendants contend they were coerced into admitting the debt because they ran a school business on the suit property. The plaintiff did not respond to the duress allegation. The court held the validity of the agreement must be tested by evidence at trial, making the suit inappropriate for striking out the defence under Order 2 Rule 15(1).

p. 2

Legal principles established

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  • Striking out a pleading is a drastic remedy available only in plain and obvious cases where the pleading discloses no arguable case

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 5th March 2015 seeking to strike out the Defence is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 2 Rule 15(1)

Cases cited (1)

  • Sunday Principal Newspaper Limited
    [1961] 2 ALL E.R. 758
Jurisdiction invoked
Order 2 Rule 15(1) of the Civil Procedure Rules, 2010

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, "Margaret Ngina Kamau v Christophe Karanja Muchai & another [2016] KEELC 1291 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1291/eng@2016-10-28

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