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ELCDismissedELC Case No. 471 of 2017· [2018] KEELC 4241 (KLR)

John Mutua Mutisya & 6 others v Kurani Ene Muikai (Sued on her Behalf and as Trustee of Alfina Matimbai Moikai) & 6 others [2018] KEELC 4241 (KLR)

Environment and Land Court
12 February 2018
COChristine Ochieng
1,277 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to strike out a land suit filed with procedural defects, ruling that genuine errors can be fixed and cases should be decided on their merits.

What this practically means

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Executive summary

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The Respondents filed a Notice of Preliminary Objection dated 2 June 2015 seeking striking out of the Applicant's suit and application instituted by Originating Summons, contending that complex issues of forcible eviction, cancellation of title deeds, fraud and disputed sale agreements could only be determined by way of a Plaint, and that the suit was an abuse of court process, relying on several Court of Appeal authorities. The court framed one main issue: whether the application and suit should be struck out for being incompetent and bad in law. On the admitted error on the face of the Originating Summons, the court applied Order 8 rules 3, 4 and 5 of the Civil Procedure Rules and held it a genuine mistake curable by amendment. On the choice of Originating Summons rather than Plaint, the court invoked Section 19(1) of the Environment and Land Court Act and Article 159(2)(d) of the Constitution, and followed Republic v District Land Registrar, Uasin Gishu, holding that justice is not dependent on technical procedure. It declined to strike out the suit because the OS raised substantive issues requiring determination. The court dismissed the preliminary objection in its entirety, ordered costs in the cause, and, noting a related pending suit between the same parties over the same land before the same court, ordered that ELC Case No. 471 of 2017 and ELC Case No. 13 of 2017 be consolidated.

Key legal issues

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01

Whether an error on the face of an Originating Summons renders the suit incompetent

Holding

No; a genuine mistake is curable by amendment under Order 8 rules 3, 4 and 5 of the Civil Procedure Rules

Reasoning

The court applied Order 8 rules 3, 4 and 5, which permit amendment of pleadings including originating summonses where the mistake is genuine and not misleading. The Respondents admitted the error was an oversight. The court found the mistake genuine and capable of being cured by amendment, so it did not go to the competency of the suit.

p. 2
02

Whether commencing a land suit by Originating Summons rather than Plaint is a ground for striking out

Holding

No; under Article 159(2)(d) and Section 19(1) of the Environment and Land Court Act the court will not strike out a suit for such a technical defect where substantive issues require determination

Reasoning

The court relied on the overriding objective in Section 19(1) of the Environment and Land Court Act and Article 159(2)(d) of the Constitution, and on the decision in Republic v District Land Registrar, Uasin Gishu, holding that justice is not dependent on technical procedure and that the OS raises substantive issues that must be heard.

p. 3

Legal principles established

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  • Errors on the face of pleadings that are genuine mistakes are curable by amendment and do not justify striking out a suit
  • Courts should decline to strike out suits filed through the wrong procedural vehicle where the proceedings raise substantive issues, applying Article 159(2)(d) of the Constitution

Court orders

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  1. 1.Dismissal of the Notice of Preliminary Objection in its entirety
  2. 2.Costs in the cause
  3. 3.Consolidation of ELC Case No. 471 of 2017 and ELC Case No. 13 of 2017

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 rules 3, 4 and 5
  • Civil Procedure ActSection 6
  • Environment and Land Court ActSection 19(1)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (7)

  • Floriculture Limited versus Central Kenya Limited & 3 others
    Civil Appeal No. 121 of 1995
  • Kibutiri Vs Kibutiri
    Civil Appeal No. 30 of 1982; (1983) KLR 62
  • Wakf Commissioners Vs Mohammed
    (1984) KLR 346
  • Kirit Babulal Bakrania Vs Champuben w/f Govindi Muwi Dodha & 2 others
    Civil Appeal No. 123 of 1993
  • Siasa Pasua & 2 others v DNM Mbaruk Khamis Mohamed & Another
    (2012) eKLR
  • Thiba Min Hydro Co. Ltd Vs Josphat Karu Ndwiga
    (2013) eKLR
  • Republic Vs. District Land Registrar, Uasin Gishu & Anor
    (2014) eKLR
Jurisdiction invoked
Environment and Land Court Act, article 159(2)(d) of the Constitution of Kenya

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, "John Mutua Mutisya & 6 others v Kurani Ene Muikai (Sued on her Behalf and as Trustee of Alfina Matimbai Moikai) & 6 others [2018] KEELC 4241 (KLR)", Case Analysis (2018). ELC Case No. 471 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4241/eng@2018-02-12

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