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ELCAllowedEnvironment & Land Case E013 of 2022· [2023] KEELC 18700 (KLR)

Teleposta Pension Scheme Registered Trustees v Opiyo & 123 others

Environment and Land Court of Kenya
3 July 2023
3,390 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 124 defendants' defence and gave a landlord immediate judgment because their case had already been decided and lost.

What this practically means

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Executive summary

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The plaintiff, Teleposta Pension Scheme Registered Trustees, moved the Environment and Land Court at Nairobi by Notice of Motion dated 21st June 2022 under Order 2 Rule 15(1)(a) and Order 36 Rule 1 of the Civil Procedure Rules, seeking striking out of the 124 defendants' defence and entry of summary judgment as prayed in the plaint, which sought vacant possession of houses on Jogoo Road plots and eviction. The plaintiff deposed that the houses were condemned as uninhabitable, the defendants' attempts to purchase failed, the plots were sold to third parties, and the defendants' prior suit (ELC 629 of 2016) raising identical claims was dismissed on 14th December 2021. The defendants, former Telkom Kenya employees claiming first priority to purchase and over two decades' occupation, contended the houses were habitable, the condemnation a ploy, and that a pending appeal (Civil Appeal No. E276 of 2022) deprived the prior judgment of finality and would be rendered nugatory. The court framed a single issue: whether the defence should be struck out and summary judgment entered. Applying D.T. Dobie, Kivanga Estates and triable-issue authorities, it held the defence merely rehashed matters already decided in ELC 629 of 2016 and raised no bona fide triable issue. It rejected the argument that a pending appeal removes finality, holding a decision remains final until overturned and stay is the remedy. The defence was struck out, summary judgment was entered as prayed in the plaint, and costs of the application were awarded to the plaintiff.

Key legal issues

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01

Whether the Defence should be struck out under Order 2 Rule 15(1)(a) as disclosing no reasonable defence in law

Holding

The Defence was struck out because it rehashed matters already adjudicated in ELC 629 of 2016 and raised no triable issue.

Reasoning

The court compared the Defence averments with the judgment in ELC 629 of 2016, which found no evidence authorising the Defendants' continued stay or entitlement to the suit property. The Defence merely restated the claims dismissed in that suit, attempting to have the court reconsider issues already decided by a competent court. Guided by D.T. Dobie and Kivanga Estates, the court found the Defence hopeless and incurable.

p. 5
02

Whether the pendency of an appeal against the ELC 629 of 2016 judgment deprives that judgment of finality

Holding

No; a decision remains final until overturned on appeal, and the remedy is stay pending appeal.

Reasoning

The Defendants argued that the pending appeal (Civil Appeal No. E276 of 2022) deprived the judgment in ELC 629 of 2016 of finality so it could not ground summary judgment. The court rejected this, holding that finality persists until reversal by a superior court, which is why the law provides for stay pending appeal. No stay was shown to be in place.

p. 5
03

Whether summary judgment under Order 36 Rule 1 was merited

Holding

Summary judgment as prayed in the Plaint was entered, the claim being for recovery of land.

Reasoning

Having found no reasonable defence, and characterising the claim as one for recovery of houses by a landlord from tenants whose terms had expired or been determined by notice to quit, the court found the summary judgment prayer merited and entered judgment as prayed in the Plaint, including vacant possession and eviction relief.

p. 6

Legal principles established

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  • A pending appeal does not deprive a judgment of its finality; a decision remains final until overturned by a superior court, and the law provides for stay pending appeal.
  • A triable issue need not be one the defendant would ultimately succeed on; it need only be bona fide.

Court orders

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  1. 1.The Defendants' Defence be and is hereby struck out
  2. 2.Summary Judgement as prayed in the Plaint be and is hereby entered
  3. 3.Costs of the application to be borne by Defendants

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B
  • Civil Procedure RulesOrder 2 Rule 15(1)(a)
  • Civil Procedure RulesOrder 36 Rule 1
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (19)

  • Kenya Commercial Bank v Suntra Investment Bank Limited
    [2015] eKLR

    Plaintiff should not be kept away from his judgment by a defendant with a sham defence

  • ASL Credit Limited v Limuru Hills Limited & 2 Others
    [2020] eKLR

    Court struck out a sham defence in a similar application

  • Gupta v Continental Builders Limited
    [1978] KLR 83

    Where no triable issue is raised, court should forthwith enter summary judgment

  • Orix Oil (Kenya) Limited v Paul Kabeu & 2 Others
    [2014] eKLR

    Triable issues warrant trial

  • Solomon Odira Okello & Another v Esther Laboso
    [2019] eKLR

    Triable issues need not succeed, only warrant trial

  • D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another
    Civil Appeal 37 of 1978 [1980] eKLR

    Principles guiding striking out of pleadings; suit only summarily dismissed if plainly and obviously hopeless

  • Kivanga Estates Limited v National Bank of Kenya Limited
    [2017] eKLR

    Strike-out jurisdiction is draconian, a last resort, balancing rival considerations

  • Olympic Escort International Co. Ltd & 2 Others v Parminder Singh Sandhu & Another
    [2009] eKLR

    A triable issue need only be bona fide, not one the defendant would succeed on

  • Job Kiloch v Nation Media Group Ltd, Salaba Agencies Ltd & Michael Riorio
    [2015] eKLR

    Definition of a bona fide triable issue requiring further interrogation at trial

  • Irene Wangui Gitonga v Samuel Ndungu Gitau
    [2018] eKLR

    Distillation of case law on summary judgment parameters

  • ICDC v Deber Enterprises Ltd
    [2006] IEA75

    Purpose of summary judgment is quick judgment where there is plainly no defence

  • Kenindia Assurance Co. Ltd v Commercial Bank of Africa & 2 others
    Nairobi CA No. 11 of 2000

    Summary procedure resorted to in the clearest of cases

  • Dhanjal Investments Ltd v Shabaha Investments Ltd
    Civil Appeal No. 232 of 1997

    If defendant shows a bona fide triable issue, he must be allowed to defend without conditions

  • Kandanlal Restaurant v Devshi & Company
    [1952] EACA77

    Bona fide triable issue entitles defendant to defend

  • Sonza Figuerido & Company Ltd v Mooring Hotel Ltd
    [1929] E.A 424

    Bona fide triable issue entitles defendant to defend

  • Kenya Trade Combine Ltd v Shah
    Civil Appeal No. 193 of 1991

    Defendant need only show defence raises triable issues which ought to go to trial

  • Dedan King'ang'i Thiongo v Mbai Gatune
    Civil Appeal No. 292 of 2000

    Where bona fide triable issues disclosed, court has no discretion to deny defendant right to defend

  • Bangue Indosuez v DJ Lowe & Co. Ltd
    Civil Appeal No. 79 of 2002

    Where bona fide triable issues disclosed, court has no discretion to deny defendant right to defend

  • D.T. Dobie & Co. Ltd v Muchina & another
    [1982] KLR 1

    Pleading disclosing no reasonable cause of action or defence ought to be dismissed

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act; application brought under Sections 1A and 1B of the Civil Procedure Act and Orders 2 Rule 15(1)(a), 36 Rule 1 and 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, "Teleposta Pension Scheme Registered Trustees v Opiyo & 123 others", Case Analysis (2023). Environment & Land Case E013 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18700/eng@2023-07-03

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