Christine Mutungi Musango v Musango Mutunga Mbusus & 4 others [2020] KEELC 2558 (KLR)
The bottom line
#Kenya's Environment and Land Court reinstated a struck-out land defence, confirming that a filed memorandum of appearance keeps a defendant properly on record.
What this practically means
#Executive summary
#Key legal issues
#Whether the striking out of the defence on 29th April 2019 was justified
The striking out was an error because a memorandum of appearance dated and filed 26th July 2017 was on record; the defence should not have been struck out.
The court found that the defence was struck out on the court's belief that no memorandum of appearance had been filed. The file in fact contained a memorandum of appearance filed by Kalinga & Co. Advocates on 26th July 2017. That error alone warranted setting aside the order, notwithstanding the applicants' concession that the memorandum was not served on the Plaintiff's advocate.
Whether non-service of the amended plaint excused the Defendants' delay
Non-service of the amended plaint did not fully excuse the Defendants, since they should have responded to the original plaint; but it weighed against punishing them while the Plaintiff remained at fault.
The court noted there was no affidavit of service of the amended plaint, and the Plaintiff offered no reason for the failure to serve. However, the Defendants were expected to reply to the original plaint served with summons rather than await the amended plaint, so both parties bore responsibility for the impasse.
Whether the application was fatally defective for lack of written authority under Order 1 Rule 13
The application was not defective; Order 1 Rule 13 applies to one party suing or defending on behalf of others, which was not the case here.
The 4th Defendant did not enter appearance or act on behalf of his co-applicants; the applicants were represented by an advocate, and the 4th Defendant deposed that he had the consent of the 2nd, 3rd and 5th Defendants. Written consent was therefore unnecessary.
Whether the defence raised triable issues warranting leave to defend
Both the struck-out defence and the draft defence raised triable issues, including that the Defendants are purchasers for value without notice of portions of Makueni/Kako/170; the interest of justice required they be heard.
The court compared the struck-out defence and the annexed draft defence and found triable issues requiring evidence. Denying the Defendants a hearing would prejudice their defence and offend the fundamental right to be heard, so reinstatement and leave to defend were merited.
Legal principles established
#- As long as a memorandum of appearance remains on record, the advocate is properly on record, and a defence should not be struck out on the ground that no appearance had been filed where a memorandum of appearance exists.
- A defendant may file a defence at any time before judgment.
- Where a defendant sues or applies jointly with others through an advocate, written authority under Order 1 Rule 13 is not required; the consent need not be in writing.
Court orders
#- 1.The order of 29th April 2019 striking out the 2nd to 5th Defendants' defence is set aside and the defence reinstated
- 2.Leave granted to the 2nd to 5th Defendants to defend the suit
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Sections 1A, 1B and 3 of the Civil Procedure Act and Order 10 Rule 11 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Christine Mutungi Musango v Musango Mutunga Mbusus & 4 others [2020] KEELC 2558 (KLR)", Case Analysis (2020). Not stated in the excerpt (Makueni ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2558/eng@2020-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.