Theresa Ojiambo v Francis Mwaura Ikinu [2017] KEELC 3579 (KLR)
The bottom line
#A Kenyan court refused to strike out a late-filed defence raising fraud allegations, but ordered the defendant to deposit Kshs 3.1 million in security while the case goes to trial.
What this practically means
#Executive summary
#Key legal issues
#Whether a defence filed out of time without leave, where no default judgment had been entered, should be struck off the record
The defence was properly on record; filing out of time was a technicality to be overlooked in favour of substantive justice
The defendant filed his defence 29 days after entering appearance, outside the 14-day window. However, the plaintiff never obtained regular default judgment, so no right to judgment had vested. The court invoked Article 159(2) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, and held that substantive justice required allowing the suit to proceed to trial rather than penalising late filing.
Whether the defence was a sham raising no triable issues and thus liable to be struck out
The defence raised triable issues, notably allegations of fraud in the auction, and could not be struck out
The applicant bore the burden of showing the defence raised no triable issues, was scandalous or frivolous. The defence alleged fraud in the conduct of the public auction and non-remittance of the purchase price, matters requiring evidence at trial. Since striking out is a draconian act removing a party from the seat of justice, the defence was allowed to stand and the parties were left to litigate on merit.
Whether the defendant should furnish security for costs and mesne rent pending trial
Yes; the defendant was ordered to deposit Kshs. 3 million as security of costs within 30 days, failing which the defence would stand dismissed, and Kshs. 100,000/= monthly as security for mesne rent
Order 26(1) of the Civil Procedure Rules grants the court discretion to order security. Given that the defendant occupied the plaintiff's registered property while alleging fraud in the auction, the court found the case fit for security. The monthly amount was fixed by reference to the defendant's own proposal in the email marked 'TO-3' rather than the sums claimed by the plaintiff.
Legal principles established
#- If a defence raises even one bona fide triable issue, the defendant must be given leave to defend
- A triable issue need not be one that must succeed; it is one that raises a prima facie defence fit for trial
- The power to strike out pleadings must be sparingly exercised and only in the clearest of cases
- The court's discretion under Order 26 to order security may be exercised judiciously on the circumstances, including conditional compliance with a peremptory default clause
Court orders
#- 1.Prayers 3, 4 and 5 of the Notice of Motion dated 18th June 2015 (striking out the Defence and entering judgment for the Plaintiff) are disallowed
- 2.The Defendant to deposit Kshs. 3 Million as security of costs in a joint interest earning account in the names of the advocates on record within 30 days, in default the Defence to stand dismissed
- 3.The Defendant to deposit Kshs. 100,000/= every subsequent month in court during the pendency of the suit as security for mesne rent
- 4.Costs of the application to the applicant
- Jurisdiction invoked
- Order 2 Rule 15, Order 26 and Order 51 Rule 1 of the Civil Procedure Rules 2010; Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Theresa Ojiambo v Francis Mwaura Ikinu [2017] KEELC 3579 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3579/eng@2017-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.