Kinoiyo Company Limited & 2 others v Ngotho & 2 others (Environment & Land Case 174 of 2018) [2024] KEELC 601 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the statements of defence and counter-claim should be struck out for want of triable issues and as an abuse of process
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.
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.
Adequacy of the defence pleadings under Order 2 rule 4(2) of the Civil Procedure Rules
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.
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.
Legal principles established
#- 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
#- 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.That costs of the application are granted to the Plaintiffs/Applicants
- Jurisdiction invoked
- Inherent jurisdiction of the court to strike out pleadings under Order 2 rule 15 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.