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ELCDismissedNot stated in the judgment as provided· [2018] KEELC 1655 (KLR)

Frank Mwangi Mathews v Elizabeth Hannah Waithera & 22 others [2018] KEELC 1655 (KLR)

Environment and Land Court
27 September 2018
COChristine Ochieng
2,193 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to kill a decade-old land case, ruling that defendants who participated for years cannot later claim they were never served with summons.

What this practically means

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Executive summary

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This was a ruling on the 2nd Defendant's Notice of Motion dated 13th March 2018 seeking a declaration that the Plaintiff's suit, filed in 2009, had fatally abated and should be struck out for want of extraction and service of summons to enter appearance on the original 1st and 2nd Defendants. The 2nd Defendant, through its director James Kanyoro, argued it was never served and so could not enter appearance or file a defence. The Plaintiff opposed, showing that the 1st and 2nd Defendants had instructed advocates, filed appearances, replying affidavits, grounds of opposition and notices of change of advocates from 2009, and raised the non-service point only at pre-trial. The court framed two issues: adherence to Order 5 of the Civil Procedure Rules and whether the suit had abated. Examining the record, the judge found the 1st and 2nd Defendants were well aware of the suit and had actively participated for almost a decade, detecting mischief and bad faith in belatedly raising non-service. Relying on Ramji Megji Gudka Ltd v Alfred Morfat Omundi Michira and DT Dobie v Muchina, the court held that striking out must be sparingly exercised and that the plaint raised serious fraud issues fit for determination on the merits. Guided by the overriding objective in section 3 of the Environment and Land Court Act, section 19(1) of the same Act and Article 159(2)(d) of the Constitution, the application was dismissed. The 1st and 2nd Defendants were directed to file defences within 14 days, with costs in the cause.

Key legal issues

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01

Whether non-extraction and non-service of summons to enter appearance causes a suit to abate under Order 5 rule 1(6)

Holding

The suit did not abate; the purpose of Order 5 service is to inform parties of the suit, and the 1st and 2nd Defendants were demonstrably aware of and participated in the suit for nearly a decade

Reasoning

Order 5 rule 1(6) provides that summons shall be collected for service within thirty days failing which the suit shall abate. However, the court found the procedure envisaged was to inform parties of the suit. The record showed the 1st and 2nd Defendants filed notices of appointment, replying affidavits and grounds of opposition from 2009, and raised the non-service point only at pre-trial. The court detected mischief and bad faith, and held no prejudice was demonstrated.

p. 3
02

Whether the suit should be struck out notwithstanding triable issues

Holding

No; striking out must be sparingly exercised, and the plaint raises serious issues of fraud and other triable issues warranting determination on the merits

Reasoning

Relying on the Court of Appeal in Ramji Megji Gudka Ltd v Alfred Morfat Omundi Michira, the power to strike out pleadings must be sparingly exercised only in the clearest of cases. The plaint raised serious fraud issues pertinent to be determined on merits, other defendants had filed defences raising triable issues, and the overriding objective under section 3 of the Environment and Land Court Act and Article 159(2)(d) favoured hearing the suit rather than striking it out.

p. 3

Legal principles established

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  • The power to strike out pleadings must be sparingly exercised and only in the clearest of cases
  • Justice shall be administered without undue regard to procedural technicalities

Court orders

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  1. 1.The 2nd Defendant's application dated 13th March 2018 to declare the main suit fatally abated and struck out is declined
  2. 2.The 1st and 2nd Defendants are directed to file their respective Defences within 14 days from the date of the order
  3. 3.The suit to be set down for hearing on its merits
  4. 4.Costs in the cause
Jurisdiction invoked
Environment and Land Court Act (sections 3 and 19(1)); Order 5 rules 1(2) & (6) and sections 1A, 1B & 3A of the Civil Procedure Act invoked by the applicant

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, "Frank Mwangi Mathews v Elizabeth Hannah Waithera & 22 others [2018] KEELC 1655 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1655/eng@2018-09-27

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