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ELCDismissedNot stated in the judgment (2007 suit, Thika)· [2018] KEELC 2817 (KLR)

Joab Kamau Njoroge v Archidiocese of Nairobi Kenya Registered Trustees [2018] KEELC 2817 (KLR)

Environment and Land Court
19 June 2018
LGL. Gacheru
2,308 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, Joab Kamau Njoroge, sued the Defendant, St. Peter & Paul Catholic Church, Kiambu, seeking removal of the Defendant's temporary structures from parcel LR.No.22404 in Thindigua, a permanent injunction restraining interference with his quiet possession, and general damages for trespass. By a Notice of Motion dated 20th May 2015 under Order 13 Rule 2 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, the Plaintiff sought judgment on admissions, contending that the Defendant's defence and the further affidavit of Peter Irungu Kabiru admitted the Plaintiff's registered ownership, the Defendant's lack of proprietary interest, and the erection of a semi-permanent Social Hall on the suit property. The Defendant, through the replying affidavit of Rev. Fr. Peter G. Mburu, countered that the land (Original 76/32/7) was surrendered as a public utility plot to the then Kiambu Town Council, later allocated to the church as trustee/custodian for the Thindigua Community, that the Plaintiff's title was fraudulently and illegally acquired (featuring in the Ndungu Report), and that it intended to challenge the validity of that title. Justice L. Gacheru held that judgment on admissions requires clear, unambiguous and unconditional admissions construed as a whole, applying Agricultural Finance Corporation and Consolidated Bank of Kenya Ltd. The alleged admissions were conditional, being coupled with allegations of fraud which can only be resolved by evidence. The application was dismissed entirely with costs to the Defendant, and the Plaintiff was directed to set the 2007 suit down for hearing within 30 days.

Key legal issues

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01

Whether judgment on admissions under Order 13 Rule 2 was merited

Holding

No - the Defendant's averments are conditional and equivocal, alleging fraud in the acquisition of the Plaintiff's title and that the land is a public utility plot held in trust for the Thindigua Community; such matters can only be determined by calling evidence

Reasoning

The court examined the defence, the further affidavit of Peter Irungu Kabiru and the replying affidavit of Rev. Fr. Peter G. Mburu. Although the Defendant acknowledged the Plaintiff's registration as proprietor, it simultaneously pleaded that the transfer was illegal and fraudulent, that the suit property was surrendered for public utility, and that it holds the land as trustee/custodian of the Thindigua Community. Construed as a whole, these are not clear, unambiguous and unconditional admissions, so the discretion under Order 13 Rule 2 cannot be exercised in the Plaintiff's favour.

p. 4

Legal principles established

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  • Judgment on admission is discretionary, not a matter of right, and will not be granted where the admissions are not clear, unambiguous and unconditional or where the defendant raises objections going to the root of the case
  • Pleadings alleged to amount to admissions must be construed as a whole to determine their effect
  • The court retains inherent power under Section 3A of the Civil Procedure Act to make orders necessary for the ends of justice and to prevent abuse of court process

Court orders

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  1. 1.The Notice of Motion dated 20th May 2015 seeking judgment on admissions is dismissed entirely
  2. 2.Costs of the application awarded to the Defendant/Respondent
  3. 3.The Plaintiff to set the suit down for hearing within 30 days from the date of the ruling

Authorities

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Legislation

  • Civil Procedure RulesOrder 13 Rule 2
  • Civil Procedure ActSection 3A

Cases cited (2)

  • Agricultural Finance Corporation vs Kenya National Assurance Co. Ltd
    Civil Appeal No.271 of 1996
  • Consolidated Bank of Kenya Ltd vs Mombasa Development Ltd & Another
    Civil Appeal No.79 of 1995
Jurisdiction invoked
Order 13 Rule 2 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

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, "Joab Kamau Njoroge v Archidiocese of Nairobi Kenya Registered Trustees [2018] KEELC 2817 (KLR)", Case Analysis (2018). Not stated in the judgment (2007 suit, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2817/eng@2018-06-19

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