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ELCDismissedNot stated in the judgment (suit filed circa 2016, Thika ELC)· [2019] KEELC 798 (KLR)

Herman Njoroge Kamau v Andrew Kamau Kuria [2019] KEELC 798 (KLR)

Environment and Land Court
1 November 2019
LGL. GACHERU
2,253 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Thika refused a shortcut to win a land dispute, ruling the case must go to a full hearing because serious disputed issues exist.

What this practically means

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Executive summary

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The Plaintiff/Applicant, registered owner of L.R No. Ndumberi/Riabai/2928, 2930 and 2931, moved the Court by Notice of Motion dated 6th August 2018 seeking summary judgment against the Defendant, who had entered appearance (after substituted service by advertisement in the Daily Nation on 25th November 2015) but had filed no defence three years after suit. The Defendant opposed by Replying Affidavit, averring that the suit property was part of the Estate of Fredrick Polarth K. Kubai, that his uncle who sold it to the Plaintiff was convicted of forgery, that the title was re-issued in the deceased's name, and that court orders restrained dealings over the estate property when the Plaintiff purchased. He argued the claim for a permanent injunction fell outside Order 36 rule 1 and that equitable relief required clean hands. The court, per L. Gacheru J, held that summary judgment under Order 36 rule 1 applies only to liquidated demands or recovery of land against a trespasser where the defendant has appeared but not filed a defence, and that the Plaintiff's prayers (permanent injunction, declaration of ownership, unquantified general damages) required proof by evidence at formal proof. Relying on ICDC v Daber Enterprises, Dhanjal Investments, Job Kilach, Continental Butchery and Postal Corporation of Kenya, the court held that even one bona fide triable issue entitles a defendant to defend, and that the affidavit in opposition may be examined where no defence is on file. Finding triable issues including alleged fraud and the Defendant's locus, the court dismissed the application entirely with costs in the cause and directed the suit to be set down for hearing on merit.

Key legal issues

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01

Whether the suit, which seeks a permanent injunction, declaration of ownership and unquantified general damages, qualifies for summary judgment under Order 36 rule 1

Holding

It does not; the claim is not for a liquidated amount and the Plaintiff must prove his case by evidence at a formal trial

Reasoning

Order 36 rule 1 confines summary procedure to suits for a liquidated demand with or without interest, or recovery of land by a landlord against an expired tenant or a trespasser. The Plaintiff's prayers were a permanent injunction, a declaration of ownership, unquantified general damages, costs and interest. The court held the claim does not relate to a liquidated amount and evidence must be called through formal proof.

p. 2
02

Whether the Defendant's Replying Affidavit raises triable issues notwithstanding that no defence was on file

Holding

Yes; the allegations of fraud, subsisting court orders at the time of acquisition, and the Defendant's locus are triable issues

Reasoning

The Defendant averred that the suit property belonged to the Estate of Fredrick Polarth K. Kubai; that an uncle who sold it was convicted of forgery; that the title was re-issued to the deceased; and that court orders restrained dealings at the time of the Plaintiff's purchase. The court held these allegations, including the Defendant's locus to agitate the matter, raise triable issues requiring a full trial, so summary judgment was unavailable.

p. 3

Legal principles established

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  • Summary judgment under Order 36 rule 1 is available only for a liquidated demand or recovery of land against a trespasser, and only where the defendant has appeared but not filed a defence
  • Summary judgment must be granted only in the clearest of cases; if a bona fide triable issue is raised, even one, the defendant must be given leave to defend
  • In the absence of a statement of defence, the court may look at the affidavit in opposition to determine whether there is a triable issue

Court orders

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  1. 1.The Notice of Motion Application dated 6th August 2018 is dismissed entirely
  2. 2.Costs of the application to be in the cause
  3. 3.The matter to be set down for hearing and heard on merit

Authorities

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Legislation

  • Civil Procedure RulesOrder 36 rule 1
  • Civil Procedure RulesOrder XXXV rule 1 (formerly; now Order 36 rule 1)

Cases cited (8)

  • ICDC vs Daber Enterprises Ltd
    (2000) 1 EA 75
  • Dhanjal Investments Ltd vs Shabaha Investments Ltd
    Civil Appeal No. 232 of 1997
  • Kandlal Restaurant v Devshi & Company
    (1952) EACA 77
  • Souza Figuerido & Company Ltd v Mooring Hotel Ltd
    (1959) EA 425
  • Job Kilach vs Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono
    Civil Appeal No. 94 of 2006 [2015] eKLR
  • Laljit/a Vakkep Building Contractors v Casousel Ltd
    [1989] KLR 386
  • Continental Butchery Limited v Nthiwa
    [1978] KLR (Civil Appeal No. 35 of 1977)
  • Postal Corporation of Kenya vs Inamdar & 2 Others
    [2004] 1 KLR 359
Jurisdiction invoked
Original civil jurisdiction over land (Environment and Land Court); application brought under Order 36 rule 1 of the Civil Procedure Rules

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, "Herman Njoroge Kamau v Andrew Kamau Kuria [2019] KEELC 798 (KLR)", Case Analysis (2019). Not stated in the judgment (suit filed circa 2016, Thika ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/798/eng@2019-11-01

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