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ELCPartially AllowedNot stated in the judgment· [2019] KEELC 216 (KLR)

George Olel Mung’au & 5 others v Joseph Situma Matafari & 10 others [2019] KEELC 216 (KLR)

Environment and Land Court
11 December 2019
1,433 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Bungoma court allowed a late-filed land defence, ruling that denying someone a hearing should be a judge's last resort.

What this practically means

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Executive summary

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In this interlocutory ruling delivered at Bungoma on 11th December 2019, the Environment and Land Court (Boaz N. Olao J) dealt with two applications by Mr Anwar for the plaintiffs in a land dispute concerning parcels Bungoma/Kamakoiwa/5087 to 5092. First, the plaintiffs sought to expunge the defence and Counter-Claim of the 2nd, 10th and 11th defendants, filed outside the 14 days granted on 9th October 2019. The court declined, explaining that the delay was attributable to its own decision to request Mr R Wamalwa to act pro bono for the 81-year-old 2nd defendant partway through the hearing, after which he sensibly extended his representation to her sons. Guided by Sebei District Administration v Gasyali as adopted in Jamnadass Sodha v Gordandas Hemraj and followed locally in JKUAT v Oebah, the court held that denying a litigant a hearing should be the last resort, deemed the defence and Counter-Claim duly filed and served, and directed that witness statements and lists of exhibits be filed within 14 days, failing which the defence and Counter-Claim would stand struck out. Secondly, the court refused the entry of Interlocutory Judgment against the defendants who had not entered appearance, holding that Order 10 Rules 4 and 6 apply only to liquidated claims, whereas the plaint sought a permanent injunction; their claims would be formally proved at the main trial. Costs were left in the cause, and the matter was listed for pre-trial before the Deputy Registrar after compliance.

Key legal issues

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01

Whether a late defence should be expunged

Holding

The defence and Counter-Claim was admitted and deemed duly filed and served, subject to filing witness statements within 14 days

Reasoning

The court acknowledged that the predicament of the 2nd, 10th and 11th defendants was caused by the court itself, which had late in the day appointed pro bono counsel for the elderly 2nd defendant. Guided by Sebei District Administration v Gasyali and its Kenyan adoption in JKUAT v Oebah, the court held that denying a hearing should be the last resort, and counsel had apologized. The plaintiffs could be compensated by costs, which were left in the cause.

p. 2
02

Whether interlocutory judgment could be entered against non-appearing defendants

Holding

No; the claim being an unliquidated injunction claim, Order 10 Rules 4 and 6 do not apply and the claims against the defaulting defendants will be formally proved at the main trial

Reasoning

The plaint sought only a permanent injunction over land parcels Bungoma/Kamakoiwa/5087-5092 with no liquidated claim, so interlocutory judgment provisions were inapplicable. Because the non-appearing defendants were sued jointly with defendants who had filed defences, their claims would be proved at the main trial rather than by separate formal proof.

p. 2

Legal principles established

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  • To deny a litigant a hearing should be the last resort of a court; irregular defences should be considered and the question is whether the plaintiff can be compensated by costs
  • Interlocutory judgment under Order 10 Rules 4 and 6 CPR is unavailable where the claim is unliquidated (e.g. an injunction claim); such claims proceed by formal proof at trial

Court orders

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  1. 1.The 2nd, 10th and 11th defendants' defence and Counter-Claim shall not be expunged and be deemed as duly filed and served
  2. 2.The 2nd, 10th and 11th defendants to file and serve their witness statements and list of exhibits within 14 days and in default the defence and Counter-Claim will stand struck out
  3. 3.No Interlocutory Judgments shall be entered against the 3rd to 9th defendants as the claim is not liquidated; their claims to be considered together with the claim against the other defendants at the main trial
  4. 4.Costs shall be in the cause
  5. 5.Once the 2nd, 10th and 11th defendants have complied, the matter be listed for pre-trial before the Deputy Registrar after which a convenient hearing date can be taken in the next term
Jurisdiction invoked
Civil Procedure Rules, Order 10 Rules 4 and 6; inherent case-management powers of the court over a pending land suit

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, "George Olel Mung’au & 5 others v Joseph Situma Matafari & 10 others [2019] KEELC 216 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/216/eng@2019-12-11

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