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ELCAllowedNot stated in the judgment (application dated 20/12/2018, filed 28/2/2019)· [2019] KEELC 2446 (KLR)

Anthony Wanjala Milimo v Timothy Wafula Walukana [2019] KEELC 2446 (KLR)

Environment and Land Court
8 July 2019
MNMwangi Njoroge
413 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan land court struck out a plaintiff's suit because the plaintiff ignored two chances to respond, showing silence in litigation can be fatal.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale delivered by Mwangi Njoroge J on 8 July 2019 on a striking-out application dated 20 December 2018 and filed on 28 February 2019. The defendant sought that the plaintiff's suit against it be struck out with costs, on grounds that the suit did not disclose a reasonable cause of action against the defendant, that ex-parte evidence had exonerated the applicant, and that the pendency of the suit was prejudicial to it. The application was unopposed by the plaintiff, although a replying affidavit by one John Ndiema was filed irregularly on 27 June 2019 despite a court order of 13 February 2019 that he be joined as a party; he was never formally joined. The court granted the plaintiff two opportunities to respond and directed parties to file submissions, but the plaintiff filed nothing. Comparing Ndiema's replying affidavit of 25 February 2019, the County Surveyor's Report of 24 September 2018 and the exhibited mutation form, and noting the plaintiff's silence, the court held that since Ndiema conceded in writing that he had not closed the road serving both the plaintiff's and his own plots, the plaintiff had no good case against the defendant. The court struck out the plaintiff's suit against the defendant with costs. The judgment does not name the parties, cite any authorities or statutes, or state the case number.

Key legal issues

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01

Whether the plaintiff's suit discloses a reasonable cause of action against the defendant

Holding

The suit against the defendant was struck out because the defendant's ex-parte evidence exonerated it and John Ndiema conceded in writing that he had not closed the road serving the plaintiff's plot, indicating the road serves both plots and the defendant has no case to answer.

Reasoning

The court compared John Ndiema's replying affidavit (dated 25/2/2019), the County Surveyor's Report dated 24/9/2018 and the exhibited mutation form, noting the plaintiff's complete silence on these documents despite being granted two opportunities to respond and file submissions. Since Ndiema conceded the road was not closed and serves both plots, the plaintiff had no good case against the defendant. The suit was accordingly struck out with costs.

p. 1

Legal principles established

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  • A plaintiff who fails to respond to a striking-out application, despite being granted opportunities to file a rejoinder, risks having the suit struck out on the uncontroverted material before the court.

Court orders

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  1. 1.The plaintiff's suit against the defendant is struck out with costs
  2. 2.Costs of the application to the defendant (application sought that costs of the application be borne by the respondent)
Jurisdiction invoked
Not expressly stated; the court exercised its inherent power to strike out a suit that does not disclose a reasonable cause of action

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, "Anthony Wanjala Milimo v Timothy Wafula Walukana [2019] KEELC 2446 (KLR)", Case Analysis (2019). Not stated in the judgment (application dated 20/12/2018, filed 28/2/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2446/eng@2019-07-08

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