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ELCPartially Allowed(not stated in the excerpt)· [2021] KEELC 4232 (KLR)

Samuel Kintalele Kiparen & 8 others v Timothy T. Saiyori & 5 others [2021] KEELC 4232 (KLR)

Environment and Land Court
18 February 2021
COCHRISTINE OCHIENG
1,714 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to strike out a plaint filed without leave, choosing to fix the technical mistake so the land dispute could be heard on its merits.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court (Ochieng J) on two competing interlocutory applications: the 4th Defendant's Notice of Motion dated 11th March 2020 seeking to strike out the Amended Plaint filed on 18th February 2020 without leave of court, and the Plaintiffs' Notice of Motion dated 25th June 2020 seeking variation of the directions issued on 3rd February 2020, which had required a formal application for leave to amend, so that the Amended Plaint could be deemed duly filed. The 4th Defendant, through Job M Thiga, argued the Amended Plaint was filed in deliberate disregard of the court's directions, was scandalous, vexatious and an abuse of process, and that its introduction would prejudice ageing purchasers. The Plaintiffs, through Wincate Muthoni Mwangi, explained that counsel filed the Amended Plaint under a misapprehension that leave had been granted, urged that counsel's mistake should not be visited on clients, and pointed to the emotive nature of land disputes. The court framed three issues: striking out, variation of directions, and costs. Relying on Section 100 of the Civil Procedure Act, Order 8 rule 5(1) and Order 2 rule 15(1) of the Civil Procedure Rules, sections 1A, 1B and 3A, Article 159(2)(d) of the Constitution, and the authorities of Republic v District Land Registrar Uasin Gishu, Ramji Megji Gudka and DT Dobie v Muchina, the court held striking out should be sparingly exercised, found the defect curable, declined to strike out the Amended Plaint, allowed the Plaintiffs' application, deemed the Amended Plaint duly filed, granted the Defendants 21 days to file amended Defences, and ordered costs in the cause.

Key legal issues

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01

Whether an Amended Plaint filed without the requisite leave should be struck out

Holding

The court declined to strike out the Amended Plaint, holding the defect curable by granting leave, and deemed it duly filed.

Reasoning

The court found the matter procedural and within its discretion. Section 100 of the Civil Procedure Act and Order 8 rule 5(1) permit amendments for determining the real questions in controversy, while Article 159(2)(d) requires justice without undue regard to technicalities. Striking out is a drastic remedy to be used sparingly; counsel's mistake should not be visited on clients, and the suit should be heard on its merits.

p. 3
02

Whether the court should vary its directions of 3rd February 2020

Holding

The court varied the directions and deemed the Amended Plaint duly filed by leave of Court, allowing the Defendants 21 days to file amended Defences.

Reasoning

The Plaintiffs explained that the Amended Plaint was filed under a genuine misapprehension that leave had been granted. Given the inherent powers under sections 1A, 1B and 3A of the Civil Procedure Act and the overriding objective, the court exercised its discretion to vary its own directions so that the dispute could be determined on its merits without injustice to any party.

p. 3

Legal principles established

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  • The power to strike out pleadings must be exercised sparingly and only in the clearest of cases.
  • Justice is administered without undue regard to procedural technicalities under Article 159(2)(d).
  • The court may at any time amend defects or errors in proceedings to determine the real question in issue (Section 100 Civil Procedure Act).

Court orders

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  1. 1.The 4th Defendant's application dated 11th March 2020 to strike out the Amended Plaint is disallowed.
  2. 2.The Plaintiffs' application dated 25th June 2020 is allowed; the orders of 3rd February 2020 are varied and the Amended Plaint is deemed duly filed by leave of Court.
  3. 3.Defendants granted leave of 21 days to file and serve their respective amended Defences to the Amended Plaint.
  4. 4.Costs of the two applications in the cause.

Authorities

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Legislation

  • Civil Procedure ActSection 100
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure Rules, 2010Order 8 rule 5(1)
  • Civil Procedure Rules, 2010Order 2 rule 15(1)
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (3)

  • Republic Vs. District Land Registrar, Uasin Gishu & Anor
    (2014) eKLR
  • RAMJI MEGJI GUDKA LTD –Vs- ALFRED MORFAT OMUNDI MICHIRA & 2 OTHERS
    [2005] eKLR
  • DT DOBIE & COMPANY (KENYA) LTD. V. MUCHINA
    [1982] KLR 1
Jurisdiction invoked
Inherent powers of the court (Sections 1A, 1B and 3A Civil Procedure Act); Article 159(2)(d) of the Constitution

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, "Samuel Kintalele Kiparen & 8 others v Timothy T. Saiyori & 5 others [2021] KEELC 4232 (KLR)", Case Analysis (2021). (not stated in the excerpt). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4232/eng@2021-02-18

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