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ELCAllowedNot stated in the judgment as provided· [2024] KEELC 601 (KLR)

Kinoiyo Company Limited & 2 others v Ngotho & 2 others (Environment & Land Case 174 of 2018) [2024] KEELC 601 (KLR)

High Court of Kenya (sitting at Nakuru)
9 February 2024
1,062 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court struck out land defendants' pleadings as an abuse of process, confirming bare denials without explaining how you acquired land won't save a defence.

What this practically means

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Executive summary

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The Plaintiffs/Applicants moved the court seeking to strike out the 1st and 2nd Defendants' Statement of Defence and Counter-Claim dated 27th June 2018, the amended counter-claim of September 2019, and the 3rd Defendant's Statement of Defence, on grounds that the pleadings were wanting in seriousness, disclosed no triable issues, offended Order 2 rule 4(2) of the Civil Procedure Rules, and were an abuse of process. The plaintiffs relied on a consent dated 21st July 2023 by which the 1st defendant acknowledged the 2nd and 3rd plaintiffs as registered absolute owners of Nakuru/Municipality Block 11/128, and on the conviction of the 1st and 2nd respondents for forgery and uttering false documents in Nakuru CMCR No. 3572 of 2018. The plaintiffs cited the established striking-out jurisprudence, including Postal Corporation of Kenya v Inamdar, Co-Operative Merchant Bank v Wekesa, Yaya Towers v Trade Bank and D.T. Dobie v Muchina. The 1st defendant filed a replying affidavit which the court found was an admission of the claim. The court held that striking out is discretionary and must be exercised judicially, but found the defence and counter-claim of the 1st and 2nd defendants to be an abuse of process intended to delay the plaintiffs' claim, given the fraud convictions and the admission of liability. The court struck out all the impugned pleadings and awarded costs of the application to the Plaintiffs/Applicants.

Key legal issues

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01

Whether the statements of defence and counter-claim should be struck out for want of triable issues and as an abuse of process

Holding

Yes. The defence and counter-claim of the 1st and 2nd defendants were held to be an abuse of the court process made to delay the plaintiffs' claim, given the defendants' conviction for fraud and the replying affidavit amounting to an admission of liability; all the impugned pleadings were struck out.

Reasoning

The court applied the settled principles that striking out is a draconian jurisdiction to be exercised sparingly, but found on the facts that the defence was not bona fide. The 1st and 2nd defendants had been convicted of forgery and uttering false documents concerning the suit property, the defendants did not demonstrate how they acquired the suit property, and the 1st defendant's replying affidavit was effectively an admission of the claim. The pleadings were therefore incurably defective and abusive.

p. 3
02

Adequacy of the defence pleadings under Order 2 rule 4(2) of the Civil Procedure Rules

Holding

The pleadings failed to comply with the requirement that a defendant to an action for recovery of land plead specifically every ground of defence; the defendants merely denied taking possession illegally without demonstrating how they acquired the suit property.

Reasoning

The plaintiffs argued, and the court accepted, that paragraphs 12 of the 1st and 2nd defendants' defence and paragraph 9 of the 3rd defendant's defence contained bare denials that the plaintiffs illegally took possession, without demonstrating how the defendants acquired the suit property or how it came into their possession. Such blanket denials offered no triable issue and served only to delay the plaintiffs in realizing their claim.

p. 2

Legal principles established

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  • The jurisdiction to strike out pleadings is discretionary and must be exercised judicially; even one bona fide triable issue entitles a defendant to leave to defend.
  • In an action for the recovery of land, a defendant must plead specifically every ground of defence relied on, and a mere plea of possession is not sufficient.

Court orders

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  1. 1.That the 1st and 2nd defendants' Statement of Defence and Counter-Claim dated 27th June 2018, the amended counter claim dated September 2019 and the 3rd Defendants' Statement of Defence dated 28th June 2019 be and are hereby struck out
  2. 2.That costs of the application are granted to the Plaintiffs/Applicants

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 rule 15
  • Civil Procedure RulesOrder 2 rule 4(2)
  • Penal Codesections 350(1) and 353

Cases cited (5)

  • Postal Corporation of Kenya v I.T Inamdar & 2 Others
    [2004] 1 KLR 359
  • Olympic Escort International Co. Ltd. & 2 Others v Parminder Singh Sandhu & Another
    [2009] eKLR
  • Co-Operative Merchant Bank Ltd. v George Fredrick Wekesa
    Civil Appeal No. 54 of 1999
  • Yaya Towers Limited v Trade Bank Limited (In Liquidation)
    Civil Appeal No. 35 of 2000
  • D.T. Dobie & Company Kenya Limited v Joseph Mbaria Muchina & Another
    [1980] eKLR
Jurisdiction invoked
Inherent jurisdiction of the court to strike out pleadings under Order 2 rule 15 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, "Kinoiyo Company Limited & 2 others v Ngotho & 2 others (Environment & Land Case 174 of 2018) [2024] KEELC 601 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/601/eng@2024-02-09

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