Luka & 4 others v Taloi & 9 others
The bottom line
#Kenya's Environment and Land Court refused to strike out a land defence, ruling that any genuine dispute over property rights must be decided at a full trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court ought to strike out the statement of defence dated March 3, 2021
- 2.Whether the defence is scandalous, frivolous, vexatious or an abuse of the court process
- 3.Who is entitled to costs
Key legal issues
#Whether the defence should be struck out as frivolous and an abuse of process
The application fails because the defence raises a triable issue regarding the defendants' right to property, which can only be resolved after hearing the parties.
The court reviewed the settled principles that striking out is draconian and sparingly exercised, and that even one bona fide triable issue entitles a defendant to defend. Paragraph 5 of the defence alleges the plaint was filed to deprive the defendants of their legal property. Whether that is so requires oral evidence at trial, so the defence is not plain, frivolous or abusive.
Effect of filing a counterclaim without a verifying affidavit
The counterclaim is defective for want of a verifying affidavit under Order 7 rule 5(a), but the defect is curable and not fatal.
Order 7 rule 5(a) requires a defence and counterclaim to be accompanied by an affidavit where there is a counterclaim. The court found the counterclaim defective but, relying on Jemimah Muchai Mwai v Peter Wangio Thuku, held that a party who inadvertently omits a verifying affidavit may be given a chance to file one, with costs addressing any prejudice from delay.
Legal principles established
#- If a defence raises even one bona fide triable issue, the defendant must be given leave to defend
- A counterclaim filed without a verifying affidavit is defective but the defect is not fatal and may be cured by leave
Court orders
#- 1.The notice of motion application dated May 24, 2021 is dismissed
- 2.Costs to be in the cause
- 3.The defendants/respondents to file a verifying affidavit within seven days from the date of the ruling
- 4.Mention on July 18, 2023 for further directions
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 51 Rule 1, Order 2 Rule 15 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act
Relief refused
#Striking out of the defendants' statement of defence dated March 3, 2021
The defence raises a bona fide triable issue as to deprivation of the defendants' right to property; striking out is a draconian act reserved for plain cases
Judgment entered in favour of the plaintiffs as prayed in the plaint
Follows from the refusal to strike out the defence; the suit must proceed to trial
Costs
Costs to be in the cause.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the law is now well settled that if the defence filed by a defendant raises even one bona fide triable issue, then the defendant must be given leave to defend.
Striking out a pleading is a draconian act, which may only be resorted to, in plain cases
This statement on its own is in my view a triable issue. Whether the applicants/plaintiffs are depriving the defendants/respondents their right to property will be determined after hearing the parties.
the filing of the counterclaim without a verifying affidavit renders the counterclaim as being defective. However, it is my view, that the said defect is not fatal.
I find that the notice of motion application dated May 24, 2021 lacks merit. It is hereby dismissed. Costs to be in the cause. The defendants/respondents to file a verifying affidavit within seven days from the date hereof. Mention on July 18, 2023 for further directions. It is so ordered.
Issues in the judgment
#Application dated May 24, 2021 said to follow a plaint dated July 14, 2021
Defence date given inconsistently as March 3 and March 4, 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Luka & 4 others v Taloi & 9 others", Case Analysis (2023). Environment & Land Case E002 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18481/eng@2023-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.