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ELCDismissedELC No. 91 of 2019· [2022] KEELC 1081 (KLR)

Samwel Cheboi & 3 others v Paul Kanda & 4 others [2022] KEELC 1081 (KLR)

Environment and Land Court of Kenya
3 March 2022
EOE. Obaga
1,403 words in judgment
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The bottom line

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The court refused to strike out a clan land dispute over a late-filed authority, showing Kenyan courts now favour hearings over procedural technicalities.

What this practically means

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Executive summary

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The Defendants in this land dispute between two clans (Kaptui and Kapkoimur) raised a preliminary objection contending that the Plaintiffs' representative suit was incompetent for failure to comply with Order 1 Rules 8 and 13 of the Civil Procedure Rules, and that the Plaintiffs had not specified the suit land or its location and acreage. The court framed a single issue: whether the suit was incompetent for non-compliance with Order 1 Rules 8 and 13. Reviewing the authorities, the court distinguished Kahindi Katana Mwango (where the authority list was unsigned) and Yiapas Ole Seese (decided pre-2010 Constitution when technicalities led to dismissal), and adopted the Plaintiffs' authorities holding that the notice requirements are flexible procedural tools rather than rigid rules. The court found that the clan members were aware of the suit and had given written authority, which though filed late, sufficed for compliance with Order 1 Rule 13. It further observed that the Defendants, who filed a counterclaim as representatives of Kapkoimur Clan, had themselves not complied with the same provisions, and that a counterclaim is in law a separate suit. Applying Article 159 of the Constitution, the court held that courts should hesitate to strike out suits on procedural technicalities unless the omission goes to the root of the case. The preliminary objection was dismissed with costs to the Plaintiffs; the late authority to plead was deemed properly filed, and the Plaintiffs in the counterclaim were given 30 days to file their own authority to plead.

Key legal issues

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01

Whether failure to comply with Order 1 Rules 8 and 13 of the Civil Procedure Rules renders a representative suit incompetent

Holding

The preliminary objection failed; the written authority, though filed late, sufficed for compliance and the suit was not struck out, the Court applying Article 159's overriding objective against procedural technicalities.

Reasoning

The court found the suit was a representative suit between two clans whose members were aware of it and had given written authority, albeit filed late. It distinguished Kahindi Katana Mwango, where the list was unsigned, and Yiapas Ole Seese, decided under the pre-2010 regime when technicalities prevailed. The court preferred the Plaintiffs' authorities holding that notice requirements are flexible procedural tools. Notably, the Defendants themselves, suing in a counterclaim, had not complied with the same rules, which they could not blame the Plaintiffs for.

p. 2

Legal principles established

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  • Courts in the era of the 2010 Constitution should be hesitant to strike out suits on procedural technicalities unless the omission goes to the root of the case
  • Late filing of written authority in a representative suit may be excused where it suffices for compliance with Order 1 Rule 13, in line with Article 159

Court orders

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  1. 1.The preliminary objection is dismissed with costs to the Plaintiffs
  2. 2.The authority to plead dated 9th December, 2018 and filed on 4th June, 2021 is deemed as having been properly filed together with the plaint
  3. 3.The Plaintiffs in the counter claim are given leave to file their authority to plead within 30 days from the date of the ruling

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 8
  • Civil Procedure RulesOrder 1 Rule 13
  • Civil Procedure RulesOrder 4 Rule 4
  • Constitution of Kenya, 2010Article 159

Cases cited (4)

  • Kahindi Katana Mwango & Another -Vs- Cannon Assurance (K) Ltd
    (2013) eKLR
  • Yiapas Ole Seese & 4 others -Vs- Sakita Ole Narok & 2 others
    (2008) eKLR
  • Ahmed Dolai & others suing on their behalf and on behalf of 27 members of Likoley Farmers -Vs- Kengen & another
    (2018) eKLR
  • Jack Mukhongo Munialo -Vs- Nzoia Sugar Company Ltd & another
    (2017) eKLR
Jurisdiction invoked
Article 159 of the Constitution of Kenya, 2010; Environment and Land Court (original jurisdiction over land disputes between two clans)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Samwel Cheboi & 3 others v Paul Kanda & 4 others [2022] KEELC 1081 (KLR)", Case Analysis (2022). ELC No. 91 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1081/eng@2022-03-03

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