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ELCPartially AllowedEnvironment & Land Case 683 of 2012· [2023] KEELC 21091 (KLR)

Mbithi & 2 others (Suing as Personal Representatives of the Estate of Christopher Kioko Mbithi) v Nairobi City Council & 3 others

Environment and Land Court
26 October 2023
4,792 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 court refused to remove a lender from a long-running land dispute and allowed late-filed defences, stressing that courts prefer keeping cases alive over striking them out.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (O. A. Angote, J) determined three interlocutory applications in a land suit filed in 1999 by the late Christopher Mbithi, prosecuted by his personal representatives against Nairobi City Council, Samedy Trading Company Limited, East African Building Society (now Ecobank Kenya Limited) and the Registrar of Titles over property L.R. No. 1/418. First, the 3rd Defendant sought to be struck out, asserting its charge had been discharged after the 2nd Defendant repaid the loan. The court dismissed the application because the Discharge of Charge was neither executed by the 2nd Defendant nor registered against the title, and the 3rd Defendant would suffer no prejudice remaining a party pending registration. Second, the Plaintiffs sought to strike out the 2nd Defendant's Further Amended Defence and Counterclaim (including a Kshs. 41 million counterclaim) filed about five months out of time and back-dated, and the 1st Defendant's Further Amended Defence as offending Order 2 Rule 6. Applying the Salat extension-of-time principles and the sparing approach to striking out pleadings, the court enlarged time and deemed the 2nd Defendant's pleadings properly on record, finding no prejudice to the Plaintiffs. On Order 2 Rule 6, the court held that subrule (2) preserves the right to amend with leave, so the 1st Defendant's amendment, made with leave, offended no rule; the Plaintiffs remain free to reply. The Plaintiffs' application was dismissed with no order as to costs; the 2nd Defendant's application was allowed, with the Plaintiffs granted 14 days to file a reply and defence to counterclaim, and each party bearing its own costs on that application.

Key legal issues

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01

Whether the 3rd Defendant (chargee) should be struck out from the suit

Holding

Application dismissed; the 3rd Defendant remains a party pending execution and registration of the Discharge of Charge.

Reasoning

Although the 3rd Defendant executed a Discharge of Charge and returned title documents, the discharge was not executed by the 2nd Defendant nor registered against the title. The Plaintiffs showed no prejudice would arise from the 3rd Defendant remaining a party until the encumbrance is formally discharged, so the joinder remains justified under Order 1 rule 3.

p. 6
02

Whether the 2nd Defendant's Further Amended Defence and Counterclaim filed out of time is properly on record

Holding

Time enlarged; the pleading deemed properly on record.

Reasoning

Applying the Salat principles, the court found the delay of about five months was explained as an administrative lapse by the advocate, the application was brought without undue delay, and no prejudice would befall the Plaintiffs. Guided by the sparing approach to striking out pleadings, the court exercised its discretion to enlarge time and deem the pleading filed within time.

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Whether the 1st Defendant's Further Amended Defence offends Order 2 Rule 6

Holding

It does not; the rule does not restrict amendment, and the 1st Defendant amended with leave.

Reasoning

Order 2 Rule 6 bars allegations inconsistent with a party's previous pleading in the same suit, but subrule (2) preserves the right to amend. The 1st Defendant was amending its Defence with the court's leave, and the Plaintiffs were not parties to HCCC No. 800 of 2002 whose pleadings were said to be contradicted. The Plaintiffs may also reply to the defence and counterclaim.

p. 9

Legal principles established

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  • A party is necessary to a suit where the reliefs sought would directly affect that person, to avoid multiplicity of suits, or where a defendant cannot effectually set a defence without that person being joined.
  • Extension of time is a discretionary equitable remedy, not a party's right, and the applicant must lay a basis for the delay.
  • Striking out pleadings is a draconian remedy exercised sparingly, only in the clearest of cases.
  • The bar on pleading inconsistent facts under Order 2 Rule 6 does not restrict a party's right to amend pleadings with leave.

Court orders

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  1. 1.The 3rd Defendant's Chamber Summons dated 12th October 2022 is dismissed.
  2. 2.The Plaintiff's Chamber Summons dated 12th October 2022 is dismissed with no order as to costs.
  3. 3.The Court enlarges the time for filing the Further Amended Defence and Counterclaim dated 29th May 2022.
  4. 4.The Further Amended Defence and Counterclaim dated 29th May 2022 and filed on 4th October 2022 is deemed to have been filed within time.
  5. 5.The Plaintiff is granted 14 days following delivery of the ruling to file their reply to Defence and Defence to the Counterclaims on record.
  6. 6.Parties shall bear their own costs of the 2nd Defendant's application.

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 1 rule 3
  • Civil Procedure Rules 2010Order 2 rule 6
  • Civil Procedure Rules 2010Order 2 rule 6(2)
  • Civil Procedure Rules 2010Order 2 rule 15

Cases cited (8)

  • Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55
    [1999] 1 EA 55

    Distinction between a defendant who ought to be joined and one whose presence is necessary for effectual adjudication.

  • Civicon Limited v Kivuwatt Limited & 2 others [2015] eKLR
    [2015] eKLR

    Approved the Jaffer Brothers test on necessary parties.

  • Nicholas Arap Korir Salat v Independent Electoral & Boundaries Commission & 7 others [2014] eKLR
    [2014] eKLR

    Extension of time is a discretionary equitable remedy; principles governing its grant.

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

    Striking out pleadings is draconian and exercised sparingly in the clearest cases.

  • D.T Dobie Company (K) Ltd v Muchina & Another [1980] eKLR
    [1980] eKLR

    A suit should not be summarily dismissed unless plainly and obviously hopeless; courts should sustain suits.

  • Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 others [2014] eKLR
    [2014] eKLR

    Parties are bound by their pleadings; evidence at variance with pleadings goes to no issue.

  • Adetoun Oladeji (NIG) v Nigeria Breweries PLC 91/2002
    91/2002

    Trite principle that parties are bound by their pleadings.

  • Malawi Railways Ltd v Nyasulu [1998] MWSC 3
    [1998] MWSC 3

    Each party is bound by its pleadings and cannot raise a fresh case without due amendment.

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property L.R. No. 1/418; Civil Procedure Rules 2010 (Order 1 rule 3, Order 2 rule 6)

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, "Mbithi & 2 others (Suing as Personal Representatives of the Estate of Christopher Kioko Mbithi) v Nairobi City Council & 3 others", Case Analysis (2023). Environment & Land Case 683 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21091/eng@2023-10-26

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