Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedCivil Case No 162 of 2007· [2017] KEELC 1455 (KLR)

Board of Govenors - Changamwe Sec School v Commissioner of Lands & another Ex-Parte Turf Developers Limited [2017] KEELC 1455 (KLR)

High Court of Kenya (Mombasa)
31 August 2017
1,213 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
Turf Developers Ltd, the 3rd defendant, moved the court under Order 1 Rule 10(4), Order 2 Rule 15(1)(a)-(d) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act seeking to strike out or dismiss the plaintiff's suit. It argued that the plaintiff disobeyed an earlier order by failing to amend the plaint and serve summons after the exparte decree of 9th December 2009 was set aside; that the plaintiff's withdrawal of the declaratory prayers (a) and (b) left no suit pending; and that the plaint disclosed no reasonable cause of action. The plaintiff opposed, contending the application was contradictory, an abuse of process and incompetent, and that the applicant, not yet joined by amendment, lacked capacity. The court dismissed the application. It held that Order 1 Rule 10(4) prescribes no penalty for non-compliance, so non-compliance alone is not fatal and is curable by direction, per D.T. Dobie v Muchina and Article 159(2)(d); that Kamunya was distinguishable since no proceedings had occurred since the decree was set aside. The court found prayer (c) - revocation of the grant over plot MN/VI/3458 Mombasa - was independent of the withdrawn declaratory prayers and could stand alone on the pleadings. The 3rd defendant, having been allowed joinder, had locus to apply. The court dismissed the application, ordered each party to bear its own costs, and directed the plaintiff to amend the plaint and serve the defendants within 21 days.

Key legal issues

#
01

Whether failure to amend the plaint after the exparte decree was set aside warranted striking out the suit

Holding

No - non-compliance is curable and not a standalone ground for striking out.

Reasoning

Order 1 Rule 10(4) provides no penalty for non-compliance, so non-compliance cannot stand alone as fatal. No proceedings had taken place since the decree was set aside, distinguishing the cited Kamunya case. The defect can be cured by directing the plaintiff to amend within a set timeline, consistent with D.T. Dobie and Article 159(2)(d) against procedural technicalities.

p. 2
02

Whether withdrawal of declaratory prayers (a) and (b) left no cause of action for trial

Holding

No - prayer (c) is independent and can be granted on its own; prayers (d) and (e) are consequential.

Reasoning

The court read prayer (c) as capable of standing alone and provable on the pleadings read as a whole, supported by paragraphs 7 and 9 of the plaint alleging disregard of the lands officer's cancellation recommendation and fear of eviction. Only prayers (d) and (e) were consequential, so the suit remained live for trial.

p. 2
03

Whether the 3rd defendant had locus standi to bring the application before joinder was effected by amendment

Holding

Yes - the court had already allowed its joinder application, making it a party with capacity to apply.

Reasoning

The plaintiff's assertion that the applicant was a stranger was misplaced because the court had already allowed the applicant's application to be joined. Failure by the plaintiff to amend the plaint could not disentitle the joined defendant from participating in proceedings or filing the strike-out application.

p. 3

Legal principles established

#
  • Where a rule prescribes no penalty for non-compliance, non-compliance alone cannot be fatal so as to justify striking out a suit.
  • A litigant allowed to be joined as a party has locus to participate in proceedings, including filing applications, even before the plaint is formally amended.

Court orders

#
  1. 1.The application dated 11th April 2016 is dismissed
  2. 2.Each party to bear its own costs of the application
  3. 3.The plaintiff to amend the plaint and serve the defendants within 21 days from the date of the ruling

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 1 Rule 10(4)
  • Civil Procedure RulesOrder 2 Rule 15(1)(a),(b),(c),(d)
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (2)

  • JOHN KAMUNYA & ANOTHER -VS- JOHN NGINJYI MUCHURI & 3 OTHERS
    (2015) eKLR
  • D.T. DOBIE Kenya Limited VS MUCHINA
    (1982) KLR 1
Jurisdiction invoked
Order 1 Rule 10(4), Order 2 Rule 15(1)(a)-(d) Civil Procedure Rules; Sections 1A, 1B and 3A Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Board of Govenors - Changamwe Sec School v Commissioner of Lands & another Ex-Parte Turf Developers Limited [2017] KEELC 1455 (KLR)", Case Analysis (2017). Civil Case No 162 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1455/eng@2017-08-31

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