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ELCPartially AllowedCivil Suit No 50 of 2021· [2022] KEELC 1215 (KLR)

Stepehen Mbaki Waita v National Land Commission & another [2022] KEELC 1215 (KLR)

Environment and Land Court
24 February 2022
3,389 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, a tenant running Magongo Bar and Magongo Guest House on Plot MN/VI/2519, sued for Kshs 33,450,450 being compensation for land development and loss of business arising from the compulsory acquisition of the suit property for the expansion of the Port Reitz, Moi International Airport access road. By a Notice of Motion dated 8th September 2021, he sought judgment against the 1st Defendant for failure to enter appearance or file a defence, and judgment on admission or striking out of the 2nd Defendant's defence, which he said admitted his claim. The application was unopposed. The court framed two issues. On the first, following Angote J in the Sir Ali Bin Salim Primary School case, it held that land matters are sensitive, there is no rule providing for default judgment on unliquidated land claims, and the plaintiff showed no prejudice; it declined default judgment as prayed but, as the application was unopposed, entered judgment in default of defence against the 1st Defendant with modification under Order 10 Rules 4, 9 and 10, directing formal proof on 5th April 2022. On the second issue, applying Order 13 Rule 2 and the Choitram v Nazari test, the court held the 2nd Defendant's defence admitted only the acquisition process and the plaintiff's status as a project affected person, while raising a bona fide triable issue on the ownership dispute justifying withheld compensation; striking out was refused under Order 2 Rule 15 and D.T. Dobie principles. The application partially succeeded; costs were in the cause.

Key legal issues

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01

Default judgment against the 1st Defendant for failure to file defence

Holding

Default judgment declined as prayed, but judgment in default of defence entered with modification to be perfected via formal proof, given land-matter sensitivities

Reasoning

Order 7 Rule 1 requires a defence within 14 days of appearance, and Order 10 provides consequences of default. However, in land matters, which are sensitive and emotive and often involve unliquidated claims, no corresponding default judgment rule exists. Following Angote J in the Sir Ali Bin Salim Primary School case, judgment in land matters should await hearing on merit. The plaintiff also failed to demonstrate prejudice. The court nonetheless, since the application was unopposed, entered default judgment with modification and directed formal proof.

p. 3
02

Judgment on admission and striking out the 2nd Defendant's defence

Holding

The 2nd Defendant's defence is not an admission of the claim and raises bona fide triable issues; the application to strike out fails

Reasoning

Applying Order 13 Rule 2 and the Choitram v Nazari test, admissions must be plain and obvious. The 2nd Defendant admitted the compulsory acquisition process and that the plaintiff was a project affected person, but justified withholding compensation pending resolution of an ownership dispute over Plot MN/VI/2519. Those facts raise triable issues. Under Order 2 Rule 15 and D.T. Dobie principles, a defence raising even one bona fide triable issue must go to trial; striking out is exercised sparingly.

p. 5

Legal principles established

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  • No judgment can be entered in land matters in default of defence until the suit is heard on merit, as there is no rule corresponding to default judgment for unliquidated land claims.
  • Where a defence raises even one bona fide triable issue, the defendant must be given a chance to defend the case; striking out is exercised sparingly.
  • A suit should not be summarily dismissed unless it is hopeless and plainly discloses no reasonable cause of action.

Court orders

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  1. 1.The Notice of Motion application is allowed but only to the extent that it is not opposed by neither the 1st nor the 2nd Defendants, and judgement in default of defence is entered against the 1st Defendant with some slight and necessary modification being a land matter under Order 10 Rules 4, 9 and 10 of the Civil Procedure Rules, 2010.
  2. 2.There shall be formal proof on the matter on 5th April, 2022 to allow the said final Judgement be entered against the 1st and 2nd Defendants.
  3. 3.The Notice of Motion Application dated 8th September, 2021 lacks merit in as far as the orders sought to strike out and entering Judgement on admission against the 2nd Defendant under Order 2 Rules 15 and 13 of the Civil Procedure Rules, 2010 are concerned.
  4. 4.Costs of the application shall be in the cause.

Authorities

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Legislation

  • Constitution of KenyaArticles 40 and 50
  • Land ActSection 123; Section 111(1)
  • Civil Procedure Act, Cap. 21Sections 1A, 1B, 3 & 3A
  • Civil Procedure Rules, 2010Order 2 Rule 15(1)(b); Order 7 Rule 1; Order 10 Rules 4, 5, 6, 9 and 10; Order 13 Rule 2

Cases cited (5)

  • Chairman, Secretary and Treasurer, School Management Committee of Sir Ali Bin Salim Primary School & another - Versus - Francis Bahati Diwani & 2 others
    [2014] eKLR
  • Endebess Development Company Limited - Versus - Coast Development Authority
    HCCC (Mombasa) No. 11 of 2017, (2018) eKLR
  • Choitrum - Versus - Nazari
    (1984) eKLR 327
  • Simon Kirima Muraguri & another - Versus - Equity Bank (Kenya) Limited & another
    [2021] eKLR
  • D.T. Dobie & Company Kenya Limited - Versus - Joseph Mbaria Muchina & Another
    [1980] eKLR
Jurisdiction invoked
Articles 40 and 50 of the Constitution of Kenya; Sections 1A, 1B, 3 & 3A of the Civil Procedure Act, Cap. 21; Orders 2 Rule 15(1)(b), 10 Rule 5 and 13 Rule 2 of the Civil Procedure Rules, 2010

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, "Stepehen Mbaki Waita v National Land Commission & another [2022] KEELC 1215 (KLR)", Case Analysis (2022). Civil Suit No 50 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1215/eng@2022-02-24

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