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ELCPartially AllowedNot stated in judgment (Notice of Motion dated 8th June 2016)· [2018] KEELC 1762 (KLR)

Boniface Mutinda Kabaka v David Mutua Kamonde Katua & 51 others [2018] KEELC 1762 (KLR)

Environment and Land Court
28 September 2018
2,440 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Machakos land court allowed a late defence but struck out an amended defence filed without the court's permission, ruling the land dispute must go to trial.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of L.R. Nos. 20885/4, 20885/5 and 20885/6, moved the court by Notice of Motion dated 8th June 2016 seeking to strike out the 1st and 2nd Defendants' Amended Defence and Counter-claim on the grounds that the Memorandum of Appearance and Defence were filed out of time, that the amendment was made without leave, and that the pleading was frivolous, vexatious and an abuse of process; he also sought judgment on his Plaint. The Defendants opposed, asserting a strong Defence raising triable issues, including their long occupation of the land as Trust land. The court framed three issues. First, on the late-filed Memorandum of Appearance and Defence, applying Salat and its own precedent, the court held these were curable irregularities absent demonstrated prejudice and allowed them on record, since a land claim also does not qualify for interlocutory judgment. Second, since no Reply was filed, pleadings closed fourteen days after the Defence of 4th April 2016; the Amended Defence and Counter-claim of 10th May 2016 was therefore filed without leave and was declared a nullity and struck out. Third, the Defence raised genuine triable issues on occupation and limitation, so it was not frivolous or vexatious and judgment on the Plaint was refused. The court partially allowed the application, struck out the Amended Defence and Counter-claim, and ordered the 1st and 2nd Defendants to pay the costs of the application.

Key legal issues

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01

Whether pleadings filed out of time should be struck out

Holding

No - late filing is an irregularity curable where no prejudice is shown

Reasoning

The court applied Salat and its own earlier decision, holding that lapses in procedure not going to jurisdiction and causing no prejudice should not attract the drastic remedy of striking out. The Defendants did not deny late filing but the Plaintiff did not demonstrate any prejudice suffered, so the Memorandum of Appearance and Defence were allowed on record.

p. 3
02

Whether leave was required before filing the Amended Defence and Counter-claim

Holding

Yes - pleadings had closed 14 days after service of the Defence, so the amendment without leave was a nullity

Reasoning

Order 8 Rule 1(1) permits one amendment without leave only before pleadings close; Order 2 Rule 13 closes pleadings fourteen days after service of the Defence where no Reply is filed. As pleadings closed on 18th April 2016, the 10th May 2016 amendment was filed without leave and was struck out as a nullity.

p. 3
03

Whether the Defence was frivolous, vexatious and an abuse of process

Holding

No - it raises triable issues including occupation of Trust land and limitation

Reasoning

The Plaintiff alleges trespass while the Defendants claim long occupation of Trust land predating the Plaintiff's title. The defence of limitation is available, requiring the Plaintiff to prove at trial that occupation was not continuous, peaceful and exclusive for twelve years. Such triable issues preclude striking out the Defence.

p. 3

Legal principles established

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  • A claim for land does not qualify for entry of interlocutory judgment
  • Striking out a pleading filed out of time is an extreme measure resorted to only in the clearest of cases
  • Amendments to pleadings after closure of pleadings require leave of the court; pleadings filed without such leave are a nullity

Court orders

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  1. 1.The Memorandum of Appearance and the Defence filed out of time allowed on record
  2. 2.The 1st and 2nd Defendants' Amended Defence and Counter-claim struck out for having been filed without leave of the court
  3. 3.The 1st and 2nd Defendants to pay the costs of the Application

Authorities

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Legislation

  • Civil Procedure RulesOrder 6 Rule 1
  • Civil Procedure RulesOrder 7 Rule 1
  • Civil Procedure RulesOrder 8 Rule 1(1)
  • Civil Procedure RulesOrder 8 Rule 2(1)
  • Civil Procedure RulesOrder 2 Rule 13

Cases cited (4)

  • Beatrice Wanjiru Kamuri vs. John Kibira Muiruri
    (2016) eKLR
  • Chairman, Secretary and Treasurer, School Management Committee of Sir Ali Bin Salim Primary School & Another Vs. Francis Bahati Diwani & 2 others
    (2014) eKLR
  • Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & Others
    (2013) eKLR
  • Mwangi Ngunju, Maina Githacu & 1500 others vs. Moses Kibai & Riakanau Farmers’ Co-operative Society Limited
    HCCC No. 1162 of 1986
Jurisdiction invoked
Original civil jurisdiction over land disputes (Environment and Land Court); Civil Procedure Rules, Order 6, Order 7 and Order 8

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Boniface Mutinda Kabaka v David Mutua Kamonde Katua & 51 others [2018] KEELC 1762 (KLR)", Case Analysis (2018). Not stated in judgment (Notice of Motion dated 8th June 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1762/eng@2018-09-28

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