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ELCOtherNot stated in the judgment extract

Grain Bulk Handlers Limited v Juja Coffee Exporters Limited [2021] KEELC 2968 (KLR)

Environment and Land Court of Kenya
7 June 2021
2,971 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reopen a concluded land dispute, confirming that a counterclaim dies with the plaint it responds to.

What this practically means

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Executive summary

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The Defendant's Notice of Motion dated 19th March 2020 sought to strike out the Plaintiff's defence to the Defendant's counterclaim as disclosing no defence, and judgment on the counterclaim over property known as Mombasa/Block 1/392. The Plaintiff opposed, contending that the ruling of Omollo J dated 22nd September 2017, which upheld a preliminary objection and struck out the plaintiff's suit, disposed of the entire proceedings including the counterclaim, leaving nothing before the court. The court framed three issues: the interpretation of the 2017 ruling, whether the application was omnibus and fatally defective, and whether it met the threshold for striking out a pleading. Perusing the record, Yano J noted that the preliminary objection was lodged on 23rd December 2015, before the amended defence and counterclaim filed on 2nd November 2016, and that Omollo J had expressly recorded that the objection was raised before the filing of the defence. The court held that once the objection was upheld, there was no substratum upon which the counterclaim could be anchored, and that the total effect of the 2017 ruling was to obliterate all proceedings. Consequently, the court was functus officio, the suit having been settled by the 2017 ruling, and it declined to consider the remaining issues lest it re-open a concluded suit. The Defendant's application was struck out, with each party bearing their own costs. All authorities cited were relied on by the parties; the court adopted none by name.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.An interpretation as to whether the ruling by Hon. Omollo J. as delivered on 22nd September, 2017 disposed off the plaintiff's case as well as the Defendant's counterclaim.
  2. 2.Whether the application herein is omnibus in nature and fatally defective.
  3. 3.Whether the application meets the threshold set out under the law to warrant striking out a pleading.

Key legal issues

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01

Effect of the ruling of Omollo J dated 22nd September 2017 on the counterclaim

Holding

The ruling obliterated the entire proceedings, including the counterclaim, since the preliminary objection predated the counterclaim and the judge had expressly noted it was raised before filing of the defence.

Reasoning

The court examined paragraph 9 of the earlier ruling, which recorded that the preliminary objection was raised before filing of the defence and ordered each party to bear their own costs of the suit. The court reasoned that although an amended defence and counterclaim were on record by the time of the ruling, the learned Judge must have based the ruling on the pleadings existing when the objection was lodged. Hence the counterclaim, dependent on the plaint, fell with it. No party sought review.

p. 3
02

Whether the court could entertain the defendant's application to strike out the defence to counterclaim

Holding

No. Having concluded the ruling of 22nd September 2017 settled the entire suit, the court was functus officio and could not revisit the matter.

Reasoning

The court held that a decision had been rendered which settled the entire suit, and that revisiting it would amount to re-opening a concluded suit. It therefore declined to consider the remaining issues of whether the application was omnibus or whether it met the threshold for striking out a pleading.

p. 3

Legal principles established

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  • Once a preliminary objection raised before the filing of a counterclaim upholds and strikes out the plaint, no substratum remains upon which the counterclaim can be anchored, and the ruling obliterating the proceedings renders the court functus officio over the entire suit.
  • A counterclaim is a response to allegations in a plaint and is typically filed as part of a defendant's answer to a plaint.

Court orders

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  1. 1.The Notice of Motion dated 19th March, 2020 is struck out as being improperly before the court
  2. 2.Each party to bear their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction over the suit; application brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 2 Rule 15(1) and Order 13 Rule 2 of the Civil Procedure Rules

Relief refused

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Striking out of the plaintiff's defence to the counterclaim and entry of judgment in favour of the defendant on the counterclaim

The court found it was functus officio because the ruling of 22nd September 2017 had concluded the entire suit including the counterclaim, leaving nothing to determine

p. 3

Costs

Each party to bear their own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, I find that the Notice of Motion dated 19 th March, 2020 is in properly before this court and the same is hereby struck out. Each party to bear their own costs. It is so ordered.
p. 3Final orders - striking out of the defendant's application
the total effect of the said ruling was to obliterate all the proceedings with each party ordered to bear their own costs thereof.
p. 3Interpretation of the 22nd September 2017 ruling
Having arrived at the above conclusion, it is my view that this court is now "functus officio", since a decision was rendered that in my view settled the entire suit.
p. 3Functus officio
A counterclaim is made by a Defendant to a Civil Proceeding against a plaintiff in response to allegation in a plaint and is typically filed as part of a defendant's answer to a plaint.
p. 3Nature of a counterclaim

Issues in the judgment

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minor

The final order appears internally contradictory: it declares the application 'in properly before this court' but then strikes it out; the phrase appears to be a typographical omission of 'im' from 'improperly'.

minor

Dates in the affidavit are inconsistent: the Replying Affidavit is described as sworn on 15th February, 2020, yet it responds to a Notice of Motion dated 19th March, 2020.

minor

The counterclaim filing date is inconsistently stated within the judgment (filed on 2nd November, 2016 but described as dated 31st October, 2016 in one passage and as filed 'on 2 nd November 2016' in another; paragraph 2 also refers to the counterclaim differently).

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, "Grain Bulk Handlers Limited v Juja Coffee Exporters Limited [2021] KEELC 2968 (KLR)", Case Analysis (2021). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2968/eng@2021-06-07

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