Boniface Mutinda Kabaka v David Mutua Kamonde Katua & 51 others [2018] KEELC 1762 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether pleadings filed out of time should be struck out
No - late filing is an irregularity curable where no prejudice is shown
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.
Whether leave was required before filing the Amended Defence and Counter-claim
Yes - pleadings had closed 14 days after service of the Defence, so the amendment without leave was a nullity
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.
Whether the Defence was frivolous, vexatious and an abuse of process
No - it raises triable issues including occupation of Trust land and limitation
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.
Legal principles established
#- 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
#- 1.The Memorandum of Appearance and the Defence filed out of time allowed on record
- 2.The 1st and 2nd Defendants' Amended Defence and Counter-claim struck out for having been filed without leave of the court
- 3.The 1st and 2nd Defendants to pay the costs of the Application
- Jurisdiction invoked
- Original civil jurisdiction over land disputes (Environment and Land Court); Civil Procedure Rules, Order 6, Order 7 and Order 8
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (6)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Boabab Development Group Limited v East African Mission for School & Orphanage & 2 others[2022] KEELC 15172 (KLR)6 Dec 2022
- Egoli Estates Limited v Bluebill Enterprises Limited (Environment & Land Case E395 of 2021) [2022] KEELC 2810 (KLR)[2022] KEELC 2810 (KLR)27 Jun 2022applied
- Tatiana Isabel Whitup v (Respondents - unnamed in extract, image publishers) & Rebecca Muriuki T/A Kahaari (Proposed Third Party)[2020] KEHC 2051 (KLR)29 Oct 2020
- Julius Kiambati Mbura v Benard Kirimi Thirunga & 2 others [2019] KEELC 935 (KLR)[2019] KEELC 935 (KLR)7 Nov 2019
- Moses Mbogo Gachango & another v Ruth Wanjiru Nganga & another [2019] KEELC 2083 (KLR)[2019] KEELC 2083 (KLR)25 Jul 2019applied
- Kiru Tea Factory Company Ltd v Stephen Maina Githiga & 13 others [2019] KECA 868 (KLR)[2019] KECA 868 (KLR)22 Feb 2019applied
Cite this brief
#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.