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ELCPartially AllowedNot stated in the judgment· [2018] KEELC 2310 (KLR)

Samson Kisia & 3 others v Francis Thoya, County Secretary County Government of Mombasa & another [2018] KEELC 2310 (KLR)

Environment and Land Court
23 July 2018
CYC. Yano
1,515 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court gave landowners judgment against the County Government of Mombasa without a full trial because the county never filed a defence.

What this practically means

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Executive summary

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By a Notice of Motion dated 23rd October 2017 under Order 36 Rule 1 of the Civil Procedure Rules, the Plaintiffs sought summary judgment on their plaint dated 20th July 2016, which sought a declaration that PLOT NO.91/11/MN belongs to them, a permanent injunction against the Defendants' interference, general damages for trespass, nuisance and disturbance, and costs. The Plaintiffs relied on a judgment in Mombasa High Court Constitutional Petition No.98 of 2012, in which the court declared that the suit property belongs to the Plaintiffs, contending that no appeal lay against it and it bound the parties. The Defendants, through grounds of opposition, argued that Order 36 did not apply, that they were not parties to the petition, that claims against the defunct Municipal Council of Mombasa should be directed to the Transitional Authority, and that the petition did not decide land ownership; they relied on the Kakamega County Secretary case. The court, C. Yano J, applied the settled summary judgment principles from Gupta v Continental Builders and Continental Butchery v Nthiwa, holding that sham defences are rejected peremptorily while bona fide triable issues attract unconditional leave to defend. Finding that the Defendants filed no defence and that the Kakamega case was distinguishable, the court held there was no triable issue. Judgment was entered for the Plaintiffs in terms of prayers (a) and (b) of the plaint; prayer (c) (general damages) was declined for want of evidence, and the Plaintiffs received the costs of the suit and application.

Key legal issues

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01

Whether summary judgment should be entered where no defence has been filed and no triable issue raised

Holding

Summary judgment entered in terms of prayers (a) and (b) of the plaint; the Defendants filed no defence and raised no bona fide triable issue.

Reasoning

The court applied the settled principles in Gupta v Continental Builders and Continental Butchery v Nthiwa: sham or bogus defences are rejected peremptorily, while bona fide triable issues attract unconditional leave to defend. The Defendants filed no defence, only grounds of opposition, and the court found no defensible issue on the claim to the suit property.

p. 2
02

Whether the Defendants' grounds of opposition disclosed triable issues

Holding

The grounds, including that they were not party to Petition No.98 of 2012, disclosed no triable issue; the Kakamega case relied on was distinguishable.

Reasoning

The court distinguished the (Interim) County Secretary, County Government of Kakamega case, noting that it concerned a successor county government's duty to satisfy a decree, whereas this suit sought specific reliefs of declaration and injunction based on the subsisting judgment in Petition No.98 of 2012. With no defence on record, the court could see no defence to the claim.

p. 2

Legal principles established

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  • Where no prima facie triable issue is raised, or the triable issues raised are a sham, the court should enter summary judgment to eliminate delays in the administration of justice.
  • If a bona fide triable issue is raised, the defendant must be given unconditional leave to defend.

Court orders

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  1. 1.Judgment entered in favour of the Plaintiffs in terms of prayer (a) and (b) of the Plaint (declaration of ownership of PLOT NO.91/11/MN and permanent injunction)
  2. 2.Prayer (c) of the Plaint (general damages) declined for want of evidence
  3. 3.Plaintiffs awarded the costs of the suit and of the application
Jurisdiction invoked
Order 36 Rule 1 of the Civil Procedure Rules (summary judgment procedure); Civil Procedure Act Section 1A

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, "Samson Kisia & 3 others v Francis Thoya, County Secretary County Government of Mombasa & another [2018] KEELC 2310 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2310/eng@2018-07-23

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