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ELCDismissed· [2019] KEELC 3826 (KLR)

Irene Maitha Mbogo v Edward Ngigi Muigai [2019] KEELC 3826 (KLR)

Environment and Land Court
28 March 2019
EOE.O. Obaga
383 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to strike out a landowner's defence, holding that any defence raising triable issues deserves a full hearing.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Nairobi on a notice of motion dated 6th August 2018 brought by the plaintiff/applicant under Order 2 Rule 15(1)(a) of the Civil Procedure Rules, seeking the striking out of the defendant's defence with costs. The applicant contended that she was the registered owner of the suit property, an innocent purchaser for value without notice of the respondent's interest, having only later discovered that the respondent had filed ELC No. 328 of 2011 (Edward Ngigi Muigai v Johnson Ochieng'Ager) and obtained injunctive orders which were never registered against the title. The respondent was duly served but filed neither grounds of opposition nor a replying affidavit. The court noted that an application under Order 2 Rule 15(1)(a) requires no evidence, and observed that the applicant's supporting affidavit was contrary to the Civil Procedure Rules. Perusing the pleadings, the court found that the respondent alleged a sale agreement with Johnson Ochieng Ager, who placed him in possession before the applicant's purchase, and that the respondent was in possession. Given the prior suit against Ager, the court held the matter required a full hearing to establish how the competing interests arose. Holding that striking out a defence is a drastic step unavailable where triable issues exist, and that triable issues need not be issues that would ultimately succeed, the court dismissed the application with no order as to costs, noting the absence of any reply or grounds of opposition.

Key legal issues

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01

Whether the defence should be struck out under Order 2 Rule 15(1)(a) for failure to disclose a reasonable defence

Holding

The application was dismissed because the defence raised triable issues, including the respondent's prior possession under a sale agreement with Johnson Ochieng Ager and the pendency of ELC No. 328 of 2011.

Reasoning

The court perused the pleadings and found that the respondent alleged he entered a sale agreement with Johnson Ochieng Ager, who put him in possession before the applicant purchased the property. Given the respondent's prior suit against Ager, the court held a full hearing was needed to establish how the competing dealings over the title occurred. Striking out was deemed too drastic where such issues exist, and triable issues need not be issues that would ultimately succeed.

p. 2

Legal principles established

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  • Triable issues justify refusal to strike out a defence; a triable issue need not be one that will ultimately succeed.
  • Striking out a defence is a drastic step not to be taken where triable issues exist.

Court orders

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  1. 1.The applicant's notice of motion dated 6th August 2018 seeking striking out of the defence was dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)(a)
Jurisdiction invoked
Order 2 Rule 15(1)(a) 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, "Irene Maitha Mbogo v Edward Ngigi Muigai [2019] KEELC 3826 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3826/eng@2019-03-28

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