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ELCAllowedLand Case No. 116 of 2016· [2017] KEELC 3420 (KLR)

Pauline Arepel Cheptalam v Ziporah Chepochepaw Kanyongo & another [2017] KEELC 3420 (KLR)

Environment and Land Court
7 March 2017
EOE.O. ObagaFNF.M. Njoroge
1,033 words in judgment
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The bottom line

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A Kenyan court handed a landowner swift victory because the other family had already lost every previous attempt to claim her land.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale on a Notice of Motion dated 25th August 2016 by which the applicant, Pauline Arepel Cheptalam, sought summary judgment under Order 36 Rule 1(1)(b) of the Civil Procedure Rules in a suit against the wife and son of her late brother, Kanyongo Arepel Riamasia, seeking a declaration that she is the sole owner of LR No. West Pokot/Siyoi/125 and an order of eviction. The dispute dated back over three decades: a panel of elders, under the now-repealed Magistrates' Jurisdiction (Amendment) Act 1981, ruled in the applicant's favour, and the verdict was adopted as judgment in Kitale SRM Land Case No. 22 of 1985. The deceased's appeal was summarily rejected, his Court of Appeal appeal dismissed, his suit dismissed for want of prosecution, his reinstatement application finally dismissed on 27th January 2015, and his extension-of-time application dismissed by the Court of Appeal on 8th December 2015. He filed a fresh suit (Kitale ELC No. 45 of 2016) in March 2016 before dying on 7th May 2016. The respondents opposed, citing that pending suit. Obaga J held the defence, filed after the summary judgment application and without leave, was irregularly filed; that the deceased had exhausted all avenues and the fresh suit was an abuse of process; and that this was a clearest case for summary judgment. The application was allowed in its entirety. No costs order appears on the face of the ruling. The ruling, signed at Nairobi by Obaga J, was dated and delivered at Kitale on 7th March 2017 by Njoroge J in the absence of the parties, who had been notified in good time.

Key legal issues

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01

Whether the applicant was entitled to summary judgment under Order 36 Rule 1(1)(b) of the Civil Procedure Rules

Holding

Summary judgment was merited; the defendants had no arguable defence as the deceased had exhausted all avenues of challenging the applicant's ownership of the suit land

Reasoning

The applicant's ownership of LR No. West Pokot/Siyoi/125 was established by a panel of elders' verdict adopted as judgment in 1985. The deceased's appeals and reinstatement applications were all dismissed, the last on 8 December 2015. His filing of a fresh suit (Kitale ELC No. 45 of 2016) shortly before his death was an abuse of process. The defendants, claiming only through the deceased, had no defence. The defence filed after the summary judgment application was procedurally irregular.

p. 2
02

The procedural irregularity of the defence filed after the summary judgment application

Holding

The defence filed on 29th August 2016 was irregularly filed because under Order 36 Rule 2 the defendants first needed leave to defend, but this did not bar the court from considering the summary judgment application

Reasoning

Where a summary judgment application is lodged after appearance but before filing of a defence, the defendant must show by affidavit or oral evidence that leave to defend should be granted. The defendants did not follow this procedure, rendering their defence irregularly filed. Nonetheless the court retained discretion to determine the application on its merits, applying the principle that summary procedure is reserved for the clearest of cases.

p. 2

Legal principles established

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  • Summary procedure should be resorted to only in the clearest of cases
  • Where an application for summary judgment is made under Order 36 Rule 1(1)(b) after appearance but before a defence is filed, the defendant may not file a defence without showing cause, by affidavit or oral evidence, why leave to defend should be granted
  • Filing a fresh suit on a matter already exhausted in prior litigation is an abuse of the process of the court

Court orders

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  1. 1.Summary judgment entered for the applicant in terms of the prayers in the Plaint
  2. 2.The application for summary judgment allowed in its entirety

Authorities

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Legislation

  • Civil Procedure RulesOrder 36 Rule 1(1)(b)
  • Civil Procedure RulesOrder 36 Rule (2)
  • Magistrates' Jurisdiction (Amendment) Act
Jurisdiction invoked
Order 36 Rule 1(1)(b) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Pauline Arepel Cheptalam v Ziporah Chepochepaw Kanyongo & another [2017] KEELC 3420 (KLR)", Case Analysis (2017). Land Case No. 116 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3420/eng@2017-03-07

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