Kakyema v Itinga & 2 others (Sued as the Legal Representative of the Estate of Nathan Kiio Itinga –Deceased) (Environment & Land Case E0011 of 2020) [2022] KEELC 2917 (KLR)
The bottom line
#A Kenyan land court refused to punish late defence filing, admitting it on strict conditions and granting a conditional stay of a Kshs 3.27 million compensation payment.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit should proceed as undefended due to late filing of defence
The Defence of the 1st and 2nd Defendants was admitted out of time subject to conditions: leave granted, thrown away costs of Kshs 20,000, costs of the application, and default vacates the admission
The 1st and 2nd Defendants filed their Statement of Defence out of time and without leave, giving no explanation. However, the court invoked Article 159(2)(d), Sections 1A and 1B of the Civil Procedure Act and natural justice, holding that barring the Defendants from being heard would be draconian. It therefore admitted the defence but imposed sanctions to deter flouting of procedural timelines.
Whether stay of execution of the order of 2nd September 2021 pending appeal should be granted
Conditional stay granted: appeal to be lodged within 60 days and Kshs 100,000 security deposited within 30 days, failing which the stay lapses automatically
The court found substantial loss established because the compensation of about Kshs 3.27 million was being executed and the Respondent did not show ability to refund if the appeal succeeded; the application was filed without undue delay (Notice of Appeal on 15th September 2021, application on 27th October 2021). However, no security had been offered, so the court fixed Kshs 100,000 as sufficient security and made the stay conditional.
Legal principles established
#- Striking out a defence is an extreme measure reserved for abuse of process; substantive justice prevails over procedural technicalities.
- A party seeking stay of execution must prove substantial loss, not merely assert it.
- Security under Order 42 Rule 6 is mandatory and guarantees due performance of the decree, not punishment of the judgment debtor.
Court orders
#- 1.Leave granted to the 1st and 2nd Defendants to file and serve their statement of Defence out of time within 7 days from the date of the ruling
- 2.The 1st and 2nd Defendants/Respondents to pay the Plaintiff Kshs 20,000 thrown away costs within 14 days
- 3.The 1st and 2nd Respondents to pay the Applicant the cost of the application dated 1st October 2021
- 4.If orders (a), (b) and (c) are not complied with, the order admitting the defence will be vacated forthwith and the matter will proceed for hearing as undefended
- 5.Stay of execution of the Order dated 2nd September 2021 granted provided the Applicants lodge their appeal within 60 days from the date of the ruling
- 6.The Applicants to deposit Kshs 100,000 as security for costs in Court within 30 days from delivery of the ruling
- 7.In default of clauses (i) and (ii), the stay granted automatically lapses
- 8.Each party to bear its own costs (application dated 26th October 2021)
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 10 Rule 9, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kakyema v Itinga & 2 others (Sued as the Legal Representative of the Estate of Nathan Kiio Itinga –Deceased) (Environment & Land Case E0011 of 2020) [2022] KEELC 2917 (KLR)", Case Analysis (2022). Not stated in judgment (ELC suit re: Mavindini/Mavindini/1238 and Mavindini/Mavindini/1239). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2917/eng@2022-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.