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ELCDismissedNot stated in the judgment· [2022] KEELC 1384 (KLR)

Family Shade Africa Limited v James Gitau Mukuria & another [2022] KEELC 1384 (KLR)

Environment and Land Court
15 February 2022
EWE. K. Wabwoto
1,159 words in judgment
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The bottom line

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A Kenyan court refused to strike out a defence over a disputed auctioned property, confirming that even one genuine triable issue means the case must go to trial.

What this practically means

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Executive summary

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This ruling disposed of the Plaintiff's Notice of Motion dated 9th July 2021, which sought to strike out the Defendants' defence under Order 2 rule 15(1)(b) and (c) and Order 7 rule 5 of the Civil Procedure Rules and to have judgment entered as prayed in the plaint. The Plaintiff, which said it purchased the suit property at a public auction on 28th May 2015 with transfer on 16th July 2019, argued that the defence was a sham raising no triable issues, and that the spousal consent issue was immaterial. The Defendants opposed, contending the defence raised at least three triable issues: whether the charge was lawfully established, whether spousal consent was obtained and required, and whether the auction sale complied with the law; they also pointed to a separate High Court suit challenging the legality of the sale. The court, per E. K. Wabwoto J, reviewed the settled principles that striking out pleadings is a draconian, discretionary remedy to be exercised judicially, sparingly and only in plain cases; a defence raising even one bona fide triable issue must be allowed to proceed to trial. Concluding that the defence disclosed triable issues determinable only after trial, the court held the application devoid of merit and dismissed it with costs to the Defendants on 15th February 2022, delivering the ruling virtually at Nairobi.

Key legal issues

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01

Whether the defence should be struck out for disclosing no reasonable defence

Holding

The defence raises triable issues and should not be struck out; the striking-out jurisdiction is draconian and sparingly exercised

Reasoning

The court reviewed the settled principles from Postal Corporation, Olympic Escort, Co-operative Merchant Bank, Yaya Towers and D.T. Dobie: striking out is a draconian remedy exercised only in plain and exceptional cases. Having perused the defence, including the contention that another suit challenges the legality of the auction sale, the spousal consent issue and compliance with auction rules, the court found bona fide triable issues fit only for trial.

p. 2

Legal principles established

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  • If a defence raises even one bona fide triable issue, the defendant must be given leave to defend
  • A triable issue need only be bona fide, not one the defendant would ultimately succeed on

Court orders

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  1. 1.The Notice of Motion dated 9th July 2021 is dismissed
  2. 2.Costs of the application awarded to the Defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 rule 15(1)(b) and (c)
  • Civil Procedure RulesOrder 7 rule 5

Cases cited (5)

  • Postal Corporation of Kenya v I.T Inamdar & 2 Others
    [2004] 1 KLR 359
  • Olympic Escort International Co. Ltd. & 2 Others v. Parminder Singh Sandhu & Another
    [2009] eKLR
  • The Co-Operative Merchant Bank Ltd. v George Fredrick Wekesa
    Civil Appeal No. 54 of 1999
  • Yaya Towers Limited v Trade Bank Limited (In Liquidation)
    Civil Appeal No. 35 of 2000
  • D.T. Dobie & Company Kenya Limited v Joseph Mbaria Muchina & Another
    [1980] eKLR
Jurisdiction invoked
Order 2 rule 15(1)(b), (c) and Order 7 rule 5 of the Civil Procedure Rules

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, "Family Shade Africa Limited v James Gitau Mukuria & another [2022] KEELC 1384 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1384/eng@2022-02-15

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