Jonathan Savage v Patrick Okeeff [2018] KEELC 3945 (KLR)
The bottom line
#The Environment and Land Court in Malindi ruled that a landowner can fix a wrong plaintiff and unsealed documents by amending, not by losing the case.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction under Section 18(2) of the Land Registration Act
The Court has jurisdiction because the Land Registrar had already made a determination of the boundary dispute; the bar applies only where boundaries remain undetermined
Section 18(2) excludes the Court's jurisdiction only when boundaries have not been 'determined'. Correspondence showed a boundary dispute report with findings and a Land Registrar's Decision directing maintenance of status quo pending a High Court order to correct the boundaries. The claimant had pursued demarcation for over ten years while the Registrar failed to implement his own determination. Article 159(2)(d) and the overriding objective of the Civil Procedure Act favour adjudication on the merits rather than ouster on procedural grounds.
Locus standi of the Plaintiff
The proper plaintiff is Digi-tel Communications Systems Ltd, the registered proprietor, being a separate legal entity from its director; but the defect is curable by substitution of parties under Order 1 Rule 10
Applying Salomon v Salomon, the Court agreed that the company is distinct from the Plaintiff, who completely misapprehended the law in filing the suit in his own name. However, Order 1 Rule 10(1) and (2) of the Civil Procedure Rules permits the Court, at any stage, to substitute or add the correct plaintiff where the suit was instituted through a bona fide mistake, and Order 1 Rule 9 provides that no suit shall be defeated by misjoinder or non-joinder.
Defective Supporting Affidavit - unsealed exhibits
The affidavit is competent; Rule 9 of the Oaths and Statutory Declaration Rules is directory and the defect is a matter of form, curable by resealing
Although concededly the exhibits were not sealed as required by Rule 9, the Court adopted Ringera J's reasoning in Standard Chartered Bank v Lucton that 'shall' is prima facie but not conclusively mandatory, and followed Thinguri and Litein Tea Factory that such defects are curable under Order 18 Rule 8. Guided by Article 159 of the Constitution, the remedy is correction by resealing, not striking out.
Legal principles established
#- Section 18(2) of the Land Registration Act only ousts the Court's jurisdiction where the boundaries have not been determined; a determination by the Land Registrar suffices
- The word 'shall' in Rule 9 of the Oaths and Statutory Declaration Rules is directory, not mandatory, and defects in sealing exhibits are curable matters of form
- A suit filed in the name of the wrong plaintiff is not defeated; the correct parties may be added or substituted under Order 1 Rule 10 of the Civil Procedure Rules
Court orders
#- 1.The Preliminary Objection dated 9th November 2017 is dismissed for lack of merit
- 2.The Plaintiff is directed to make the necessary application to enjoin all the proper and necessary parties within 30 days, failing which the suit shall stand dismissed without further reference to the Court
- 3.Each party shall bear their own costs
- Jurisdiction invoked
- Articles 162 and 165 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jonathan Savage v Patrick Okeeff [2018] KEELC 3945 (KLR)", Case Analysis (2018). Malindi ELC (Suit particulars not stated in excerpt; Plaint dated 20th June 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3945/eng@2018-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.