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ELCDismissedNot stated in the judgment· [2017] KEELC 560 (KLR)

Bilha Njeri Kabiru & another v Onesmus Karina & 3 others [2017] KEELC 560 (KLR)

Environment and Land Court
18 December 2017
JKJ G Kemei
2,199 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court confirmed that a defendant can counterclaim against a co-defendant in the same suit, striking down an attempt to force a separate case.

What this practically means

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Executive summary

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The Plaintiffs, siblings and beneficiaries of the estate of the late Waimiri Karina (owner of parcel LOC 19/Rwathia/1083), sued for cancellation of the registration of the 2nd Defendant as proprietor of the suit land, mesne profits from 18 January 2002, a mandatory injunction compelling him to vacate, and costs. They alleged the transfer to the 2nd Defendant was fraudulent and aided by the 3rd and 4th Defendants. The 2nd Defendant, asserting he purchased the land from the 1st Defendant (the estate's administrator) on 4 September 1994 and has occupied and developed it since, filed a defence and counterclaim seeking dismissal of the Plaintiffs' claims as obtained through false swearing and compensation of Kshs 1,440,000 from the 1st Defendant, with the restrictions on the land retained as security. The Plaintiffs replied that the 2nd Defendant's occupation stemmed from an unauthorised short-term lease amounting to intermeddling. By an application dated 13 February 2017, the Plaintiffs raised a preliminary objection contending that the counterclaim was defective, that the 2nd Defendant was non-suited, and that the claim against the 1st Defendant ought to be brought in an independent suit. The court applied the Mukisa Biscuit test, holding that a preliminary objection must be a pure point of law not involving judicial discretion, and interpreted Order 7 rule 8 of the Civil Procedure Rules as permitting a counterclaim against a co-defendant arising from the same cause of action, to avoid multiplicity of suits. The preliminary objection was dismissed with costs to the 2nd Defendant. Delivered at Murang'a on 18 December 2017 by J G Kemei, Judge.

Key legal issues

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01

Whether the Plaintiffs' preliminary objection against the counterclaim meets the Mukisa Biscuit test

Holding

The objection fails because the question whether the counterclaim should be excluded involves the court's discretion, and the court exercises that discretion in favour of trying the counterclaim with the main suit

Reasoning

The court applied the Mukisa Biscuit definition: a preliminary objection must be a pure point of law, admitted on the pleadings, and must not require the exercise of judicial discretion. Because Order 7 rules 3, 8 and 12 vest a discretion in the court to admit or exclude a counterclaim, the Plaintiffs' objection could not succeed as a pure point of law. It was dismissed with costs.

p. 4
02

Whether a defendant may counterclaim against a co-defendant

Holding

Yes - Order 7 rule 8 permits a counterclaim against the plaintiff together with any other persons, including a co-defendant, and the 2nd Defendant complied with the procedural requirements

Reasoning

The court interpreted Order 7 rule 8 as allowing a defendant to raise a counterclaim against persons not already party to the suit and against co-defendants. The 2nd Defendant had added the required further title and had issued a notice under Order 1 rule 24(1) claiming Kshs 1,440,000 from the 1st Defendant. Trying the counterclaim together with the main claims avoids multiplicity of proceedings.

p. 4

Legal principles established

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  • A preliminary objection must be a pure point of law, not dependent on ascertaining facts or the exercise of judicial discretion
  • Under Order 7 rule 8, a defendant may counterclaim not only against the plaintiff but also against other persons, including a co-defendant, and the court retains a discretion to admit or exclude such a counterclaim

Court orders

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  1. 1.The Preliminary Objection dated 13/2/17 is dismissed
  2. 2.Costs of the Preliminary Objection awarded to the 2nd Defendant/Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 7 rule 3
  • Civil Procedure RulesOrder 7 rule 8
  • Civil Procedure RulesOrder 7 rule 12
  • Civil Procedure RulesOrder 1 rule 24(1)
  • Civil Procedure ActSection 1A(1)
  • Environment and Land Court ActSection 19(1)(2)

Cases cited (3)

  • County Government of Kilifi Vs Mombasa Cement Limited
    2017 eKLR
  • Mukisa Biscuit Company Vs Westend Distributors Limited
    (1969) EA 696
  • Oraro vs. Mbaja
    [2005] 1 KLR 141
Jurisdiction invoked
Environment and Land Court Act, section 19 (raised by the 2nd Defendant); the court exercised its original civil jurisdiction over the land dispute

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, "Bilha Njeri Kabiru & another v Onesmus Karina & 3 others [2017] KEELC 560 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/560/eng@2017-12-18

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