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ELCAllowedEnvironment & Land Case 58 'B' of 2021 (Formerly Malindi CMCC No 284/2018)· [2022] KEELC 15172 (KLR)

Boabab Development Group Limited v East African Mission for School & Orphanage & 2 others

Environment and Land Court of Kenya
6 December 2022
3,171 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a defence filed without court permission after a case transfer, confirming transfers don't erase existing pleadings.

What this practically means

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Executive summary

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The plaintiff, Boabab Development Group Limited, sued the three defendants seeking rescission of a conditional financing and purchase agreement dated May 17, 2016, general and special damages of Kshs 18,991,690 for breach of contract, interest, and a permanent injunction restraining the sale of four villas known as Ziwa 1 to Ziwa 4. The suit was originally filed in the Malindi Chief Magistrate's Court in November 2018, where the defendants filed a statement of defence on December 10, 2018. On October 1, 2019, Justice R Nyakundi, in Malindi High Court Misc Application No 27 of 2019, withdrew the suit from the Chief Magistrate's Court and transferred it to the Environment and Land Court at Nakuru under section 18 of the Civil Procedure Act. After the transfer, the defendants filed a fresh statement of defence and counterclaim dated February 4, 2022, claiming Kshs 156,000,000, without leave. The plaintiff moved to strike out this pleading under Order 2 rule 15, arguing that pleadings had closed fourteen days after December 10, 2018 under Order 2 rule 13, and that a pleading filed without leave is a nullity. The defendants contended their original defence stood withdrawn with the Malindi suit, justifying a fresh filing. The court held that the transfer order did not withdraw the suit - otherwise nothing would have been left to transfer - and that the defendants should have sought leave to amend under Order 8 rather than file a fresh defence. The court struck out the February 4, 2022 statement of defence and counterclaim as irregular, with costs of the application abiding the outcome of the main suit.

Key legal issues

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01

Whether the second statement of defence and counterclaim filed without leave after closure of pleadings should be struck out

Holding

The application is merited; the statement of defence and counterclaim dated February 4, 2022 is irregular and struck out

Reasoning

Pleadings closed fourteen days after service of the defence on December 10, 2018 under Order 2 rule 13. The defendants therefore needed leave to amend under Order 8 rather than filing a fresh defence and counterclaim. The transfer order under section 18 did not withdraw the suit, so the original defence was not extinguished and the fresh filing was irregular.

p. 7
02

Effect of the section 18 transfer order from the Malindi Chief Magistrate's Court

Holding

The suit was withdrawn from the subordinate court and transferred; the suit itself was not withdrawn, so the earlier defence survived on the transferred file

Reasoning

The court construed the order of Justice Nyakundi transferring the suit to the ELC at Nakuru. If the defendants' interpretation were correct - that the defence stood withdrawn with the suit - there would have been nothing left to transfer. The transfer preserved the suit and the pleadings already on record.

p. 7
03

Costs of the application

Holding

Costs follow the event under section 27 of the Civil Procedure Act, but here costs of the application abide the outcome of the main suit

Reasoning

The court noted the general rule that costs follow the event under section 27 of the Civil Procedure Act, but in its discretion directed that the costs of the striking-out application await the outcome of the main suit rather than being awarded immediately.

p. 7

Legal principles established

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  • Striking out a pleading is a draconian act reserved for plain cases
  • Where pleadings have closed, a party must seek leave to amend under Order 8 rather than file a fresh pleading
  • An order transferring a suit does not withdraw the suit itself

Court orders

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  1. 1.The defendants/respondents' statement of defence and counterclaim dated February 4, 2022 and filed on February 16, 2022 is irregular and is struck out from the court record
  2. 2.The costs of the application shall abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3A, 18, 27
  • Civil Procedure Rules 2010Order 2 rule 13, Order 2 rule 15(1)(b),(c),(d) and (2), Order 8, Order 25 rule 1, Order 51 rule 1

Cases cited (5)

  • Boniface Mutinda Kabaka v David Mutua Kamonde Katua & 51 others
    [2018] eKLR

    Pleading filed without leave after closure of pleadings is a nullity

  • Ariho Emmanuel & Another v Centenary Rural Development Bank Limited & 2 others
    Uganda HCC No 14 of 2016

    Pleading filed without leave is a nullity

  • Priscilla Nyambura Njue v Geovhem Middle East Ltd & Kenya Bureau of Standards
    [2021] eKLR

    Whether pleadings in a withdrawn suit survive the suit itself

  • D T Dobie & Company Limited vs Muchina
    [1982] KLR

    Principles on striking out pleadings

  • The Co-perative Merchant Bank Ltd v George Fredrick Wekesa
    Civil Appeal No 54 of 1999

    Striking out a pleading is a draconian act resorted to only in plain cases

Jurisdiction invoked
Environment and Land Court jurisdiction over a suit transferred from the Chief Magistrate's Court pursuant to section 18 of the Civil Procedure Act

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, "Boabab Development Group Limited v East African Mission for School & Orphanage & 2 others", Case Analysis (2022). Environment & Land Case 58 'B' of 2021 (Formerly Malindi CMCC No 284/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15172/eng@2022-12-06

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