Lucy Wairimu Njogu v Amos Macharia (Environment & Land Case 576 of 2017) [2020] KEELC 2601 (KLR)
The bottom line
#A Kenyan land court refused to throw out a landowner's defence, ruling that disputes over land ownership deserve a full hearing, not a shortcut.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant's replying affidavit filed out of time should be deemed duly filed
The court exercised its discretion in the interests of justice and deemed the affidavit duly filed, noting Order 51 Rule 14 is not mandatory and that the preliminary objection demonstrated the Defendant's opposition
The Plaintiff argued the application was unopposed since the replying affidavit was out of time. The court noted the Defendant had filed a Notice of Preliminary Objection demonstrating opposition. Order 51 Rule 14 is not couched in mandatory terms, and relying on the Gideon Sitelu Konchellah and Raila Odinga decisions, the court deemed the affidavit duly filed in the interests of justice.
Whether the Defence and Counterclaim disclose triable issues warranting striking out
The Defence and Counterclaim raise triable issues; the application to strike out was disallowed and the suit set down for full trial
The Defence disputed the Plaintiff's proprietary rights, referenced ELC 579 of 2017, gave a history of the suit land, claimed 1.5 acres purchased from Moses Kirruti Lempaso and Grace Waithera Kirruti, and alleged development of the land. Applying Order 2 rule 15 and the Court of Appeal's guidance that striking out must be sparingly exercised and that even one triable issue suffices, the court held the matter should proceed to full trial on its merits.
Legal principles established
#- The power to strike out pleadings must be sparingly exercised and only in the clearest of cases
- Even one triable issue is sufficient to save a defence from being struck out
- On a striking-out application the court should not deal with the merits of the case
Court orders
#- 1.The Defendant's replying affidavit filed out of time deemed to have been duly filed
- 2.The Plaintiff's application dated 8th May 2019 disallowed
- 3.All parties to comply with Order 11 and set the suit down for hearing on its merits
- 4.Costs in the cause
- Jurisdiction invoked
- Order 2 Rule 15(a)-(d); Order 51 Rules 1 and 2 of the Civil Procedure Rules; section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lucy Wairimu Njogu v Amos Macharia (Environment & Land Case 576 of 2017) [2020] KEELC 2601 (KLR)", Case Analysis (2020). ELC Case (Kajiado) – Notice of Motion dated 8th May 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2601/eng@2020-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.