Benjamin Kithu Nahashon v Severino Njuki Joseph [2018] KEELC 1842 (KLR)
The bottom line
#Kenya's Embu Land Court struck out a son's defence over his father's land, ruling sons cannot challenge a buyer's title on the father's behalf.
What this practically means
#Executive summary
#Key legal issues
#Striking out a defence under Order 2 Rule 15
The defence disclosed no reasonable defence and was scandalous and an abuse of the court process, warranting striking out.
Applying D.T. Dobie & Co (K) v Joseph Muchina, the court acknowledged the sparing use of the striking-out power. However, the Defendant admitted lodging the caution merely to protect his own and his father's interest pending a separate suit. The Defendant lacked locus standi to allege fraud, and no legitimate customary interest in his father's land was demonstrated. The only person who could reasonably challenge the Plaintiff's title was the Defendant's father, who had already filed Embu ELC No. 152 of 2017.
Locus standi to allege fraud in a third party's conveyance
The Defendant had no locus standi to challenge the Plaintiff's acquisition; only the vendor, Kombo, could raise that issue.
The alleged fraud related to a transaction between the Plaintiff and Kombo, who is still alive and has filed his own suit, Embu ELC No. 152 of 2017. Any protective orders Kombo requires should be sought in that suit. The court also noted that no explanation was given for the father's failure to lodge the caution himself.
Customary law interest in a father's land
No legitimate interest known to law was demonstrated; a son has no legitimate interest in his father's land.
The Defendant asserted that his father inherited the suit property from his clan as a gift, giving him a customary interest. Relying on Esiroyo v Esiroyo, the court held that a son has no legitimate interest in his father's land and was not satisfied that any customary law interest was capable of being established on the material before it.
Entry of final judgment on striking out
Entry of judgment was declined because the claim was not liquidated; the suit should proceed as undefended.
Although the defence was struck out, the court held that granting final orders producing a decree without a hearing is not provided for in a suit of this nature. The Plaintiff was therefore directed to set the suit down for formal proof as an undefended suit rather than being awarded judgment summarily.
Legal principles established
#- The power to strike out pleadings should be used sparingly and cautiously, aiming to sustain rather than terminate a suit.
- A defendant has no legitimate interest in his father's land and cannot lodge a caution to protect the father's interest or ventilate allegations of fraud against the father's conveyance.
- Final judgment without a hearing is not available in an unliquidated land claim; the proper course is to set the suit down as an undefended suit.
Court orders
#- 1.The Defendant's statement of defence is struck out in terms of prayer (1) of the notice of motion dated 8th January 2018
- 2.The request for entry of judgment as prayed in the plaint is declined
- 3.The Defendant shall bear costs of the application
- 4.The Plaintiff is at liberty to set down the suit for hearing as an undefended suit
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act; application brought under Order 2 Rule 15 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Kithu Nahashon v Severino Njuki Joseph [2018] KEELC 1842 (KLR)", Case Analysis (2018). Embu ELC suit arising from plaint dated 3rd October 2017 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1842/eng@2018-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.