Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 13th December 2011· [2019] KEELC 3135 (KLR)

Nakuru Joy Teck Enterprises v Raphael K. Korir [2019] KEELC 3135 (KLR)

High Court of Kenya
30 May 2019
DOD. O. Ohungo
864 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

The High Court in Nakuru refused to evict a land occupier without trial because fraud claims made the case too disputed for shortcut judgment.

What this practically means

#

Executive summary

#
This ruling determined the plaintiff's Notice of Motion dated 13th December 2011 seeking summary judgment under Order 36 of the Civil Procedure Rules: an order evicting the defendant from land parcel Njoro/Ngata Block2/3251, mesne profits at KShs 30,000 per month from 26th October 2011 until eviction, and costs. The plaintiff, a company represented by its director Benjamin Kisoi Sila, asserted it purchased the suit property on 10th October 2011, obtained a title deed on 24th October 2011, and that the defendant occupied it without permission and refused to vacate. The defendant opposed through a replying affidavit, contending the defence raised triable issues and that mesne profits were unproven special damages. The application was canvassed by written submissions filed in August and October 2018. Relying on Court of Appeal authority including Ternic Enterprises Limited v Waterfront Outlets Limited, Judge D. O. Ohungo reiterated that a defendant demonstrating even a single bona fide triable issue must be given leave to defend, and a triable issue need not succeed at trial. Although the defendant did not file a counterclaim to cancel the plaintiff's title, the court found his allegations that the registration was procured fraudulently and that the underlying sale was null and void for want of land control board consent were triable issues. The Notice of Motion was dismissed with costs to the defendant on 30th May 2019 at Nakuru.

Key legal issues

#
01

Whether summary judgment could be granted where the defence alleges fraud and nullity of the sale for want of land control board consent

Holding

Application dismissed; the pleaded fraud and nullity are triable issues entitling the defendant to defend

Reasoning

The court reiterated that a defendant showing even one bona fide triable issue must be given leave to defend. Though the defendant filed no counterclaim to seek cancellation of title, the allegations of fraud in procurement of registration and nullity of the sale agreement for want of land control board consent raise prima facie issues fit for trial. A triable issue need not succeed at trial; the defendant deserves his day in court.

p. 2

Legal principles established

#
  • A defendant who demonstrates even a single bona fide triable issue must be given leave to defend; a triable issue need not succeed at trial

Court orders

#
  1. 1.Notice of Motion dated 13th December 2011 dismissed with costs to the defendant

Authorities

#

Legislation

  • Civil Procedure RulesOrder 36 Rule 1(1)(a) and (2)

Cases cited (5)

  • Ternic Enterprises Limited v Waterfront Outlets Limited
    [2018] eKLR
  • Isaac Awuondo v Surgipharm Limited & Another
    [2011] eKLR
  • Moi University v Vishva Builders Limited
    Civil Appeal No. 296 of 2004 (unreported)
  • H.D Hasmani v. Banque Du Congo Belge
    (1938) 5 E.A.C.A 89
  • Patel vs. E.A. Cargo Handling Services Ltd.
    [1974] E.A. 75
Jurisdiction invoked
Order 36 Rule 1(1)(a) and (2) of the Civil Procedure Rules (summary judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nakuru Joy Teck Enterprises v Raphael K. Korir [2019] KEELC 3135 (KLR)", Case Analysis (2019). Notice of Motion dated 13th December 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3135/eng@2019-05-30

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