Mbithi & 2 others (Suing as Personal Representatives of the Estate of Christopher Kioko Mbithi) v Nairobi City Council & 3 others
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 3rd Defendant (chargee) should be struck out from the suit
Application dismissed; the 3rd Defendant remains a party pending execution and registration of the Discharge of Charge.
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.
Whether the 2nd Defendant's Further Amended Defence and Counterclaim filed out of time is properly on record
Time enlarged; the pleading deemed properly on record.
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.
Whether the 1st Defendant's Further Amended Defence offends Order 2 Rule 6
It does not; the rule does not restrict amendment, and the 1st Defendant amended with leave.
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.
Legal principles established
#- 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
#- 1.The 3rd Defendant's Chamber Summons dated 12th October 2022 is dismissed.
- 2.The Plaintiff's Chamber Summons dated 12th October 2022 is dismissed with no order as to costs.
- 3.The Court enlarges the time for filing the Further Amended Defence and Counterclaim dated 29th May 2022.
- 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.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.Parties shall bear their own costs of the 2nd Defendant's application.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.