Boabab Development Group Limited v East African Mission for School & Orphanage & 2 others
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the second statement of defence and counterclaim filed without leave after closure of pleadings should be struck out
The application is merited; the statement of defence and counterclaim dated February 4, 2022 is irregular and struck out
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.
Effect of the section 18 transfer order from the Malindi Chief Magistrate's Court
The suit was withdrawn from the subordinate court and transferred; the suit itself was not withdrawn, so the earlier defence survived on the transferred file
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 If the defendants' interpretation were correct - that the defence stood withdrawn with the suit - there would have been nothing left to transfer.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.
Costs of the application
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
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.
Legal principles established
#- 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
#- 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.The costs of the application shall abide the outcome of the main suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.