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ELCPartially AllowedNot stated in judgment (ELC suit re: Mavindini/Mavindini/1238 and Mavindini/Mavindini/1239)· [2022] KEELC 2917 (KLR)

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)

Environment and Land Court
29 June 2022
4,805 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The court determined two applications in an ELC suit concerning compulsory acquisition of the suit properties (Mavindini/Mavindini/1238 and 1239) for the Thwake Multipurpose Dam project. First, the Plaintiff's Notice of Motion dated 1st October 2021 sought to have the suit proceed as undefended because the 1st and 2nd Defendants filed their Statement of Defence out of time and without leave, and the 3rd Defendant (National Land Commission) never entered appearance or filed a defence. Although the late filing was not disputed and no explanation was offered, the court declined to strike out the defence, invoking Article 159(2)(d) of the Constitution, Sections 1A and 1B of the Civil Procedure Act, and the Salat and Githere authorities on substantive justice over procedural technicality. The defence was admitted out of time on conditions: leave within 7 days, Kshs 20,000 thrown away costs within 14 days, costs of the application to the Plaintiff, and default would vacate the admission and render the suit undefended. Second, the 1st and 2nd Defendants' application dated 26th October 2021 sought stay of execution of the order of 2nd September 2021 (by Hon. Justice C. Mbogo) directing the National Land Commission to pay the Plaintiff approximately Kshs 3.27 million as assessed compensation for immovable assets and developments, pending an intended appeal. Applying Order 42 Rule 6 and the Butt, RWW v EKW, Charlse Wahome Gethi, Mukuma v Abuoga and Consolidated Marine authorities, the court found substantial loss established (the Plaintiff did not refute execution and did not show ability to refund) and no unreasonable delay, but noted no security had been offered. It granted a conditional stay: appeal to be lodged within 60 days, Kshs 100,000 security deposited within 30 days, failing which the stay lapses automatically. Each party to bear its own costs on that application.

Key legal issues

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01

Whether the suit should proceed as undefended due to late filing of defence

Holding

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

Reasoning

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.

p. 6
02

Whether stay of execution of the order of 2nd September 2021 pending appeal should be granted

Holding

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

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 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. 2.The 1st and 2nd Defendants/Respondents to pay the Plaintiff Kshs 20,000 thrown away costs within 14 days
  3. 3.The 1st and 2nd Respondents to pay the Applicant the cost of the application dated 1st October 2021
  4. 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. 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. 6.The Applicants to deposit Kshs 100,000 as security for costs in Court within 30 days from delivery of the ruling
  7. 7.In default of clauses (i) and (ii), the stay granted automatically lapses
  8. 8.Each party to bear its own costs (application dated 26th October 2021)

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 50, 159, 159(2)(d)
  • Civil Procedure ActSections 1A, 1B, 3A, 63(e)
  • Civil Procedure Rules 2010Order 7 Rule 1, Order 10 Rule 9, Order 42 Rule 6(1) and (2), Order 51 Rule 1
  • Land ActSections 112, 113

Cases cited (11)

  • KTDA Farmers Company Limited v Kei Matt Ltd
    [2018] eKLR
  • Beatrice Wanjiru Kamuri v John Kibira Muiruri
    [2016] eKLR
  • HGE v SM
    [2014] eKLR
  • RWW v EKW
    (2019) eKLR
  • Githere v Kimugu
    [1976-1985] E.A. 101
  • Nicholas Kiptoo Arap Korir Salat v IEBC & Another
    (2013) eKLR
  • Butt v Rent Restriction Tribunal
    (1982) KLR 417
  • Consolidated Marine v Nampijja & Another
    Civil App No. 93 of 1989 (Nairobi)
  • Charlse Wahome Gethi v Angela Wairimu Gethi
    (2008) eKLR
  • Mukuma v Abuoga
    [1988] KLR 645
  • Arun C Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others
    [2014] eKLR
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

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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, "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.