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ELCDismissedNot stated in the judgment as provided· [2024] KEELC 999 (KLR)

Kalii v Masika & 11 others (Environment & Land Case 42 of 2017) [2024] KEELC 999 (KLR)

Environment and Land Court
21 February 2024
TMT. Murigi
1,922 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to end a land dispute early, ruling the defendants' defence raised real questions that must go to full trial.

What this practically means

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Executive summary

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By a Notice of Motion dated 9th December 2021 brought under Section 3A of the Civil Procedure Act and Order 35 rule 1 of the Civil Procedure Rules, the Plaintiff sought summary judgment against the Defendants as prayed in the Plaint, together with costs. The suit sought a declaration that the Defendants had unlawfully encroached on plot No. 1/130 within Makueni County, a permanent injunction, and an assessment of general damages for trespass. The Defendants opposed through the replying affidavit of Serah Mutiso, contending that their joint defence and counterclaim dated 11/12/2017 raised triable issues, including whether they had occupied the land since time immemorial, whether it was trust land formerly vested in the County Council of Makueni, and whether its allocation to the Plaintiff was unconstitutional and illegal. In submissions, the Plaintiff maintained the Defendants had no documentary proof of their claim; the Defendants argued the application was misconceived, that the defence was not a sham, and that they were entitled to a fair hearing under Article 50. The court framed one issue: whether the Applicant had met the threshold for summary judgment. It held that Order 35 rule 1 was inapplicable as the suit was not by agreement of parties, and Order 36 rule 1 covers liquidated demands or recovery of land by a landlord from a tenant where no defence is filed. As a defence and counterclaim raising triable issues was on record, and applying Dhanjal Investments and Kenya Trade Combine, the court dismissed the application with costs on 21st February 2024.

Key legal issues

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01

Whether the Applicant met the threshold for summary judgment

Holding

The application fails: Order 35 rule 1 is inapplicable as the suit was not by agreement of parties, and Order 36 rule 1 does not apply because there is no liquidated demand or landlord-tenant relationship and a defence and counterclaim raising triable issues is on record.

Reasoning

The Applicant brought the motion under Order 35 rule 1, which governs proceedings by agreement of parties, and this suit was not such. The proper summary procedure under Order 36 rule 1 applies to liquidated demands or recovery of land by a landlord from a tenant or trespasser where no defence is filed. Here the Defendants filed a defence and counterclaim on 11/12/2017 raising triable issues, including whether the land was trust land and whether its allocation was unconstitutional. Where a defence raises triable issues, summary judgment cannot be granted.

p. 4

Legal principles established

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  • A defendant need only show that the defence on record raises triable issues which ought to go for trial; the defence need not be one that must succeed.
  • Where the defendant shows a bona fide triable issue, the defendant must be allowed to defend without condition.

Court orders

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  1. 1.The application dated December 9, 2021 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure Rules, 2010Order 35 rule 1
  • Civil Procedure Rules, 2010Order 36 rule 1
  • Civil Procedure Rules, 2010Order 2 rule 15
  • National Land Commission Act, 2012Section 15(4)
  • Constitution of Kenya, 2010Article 50

Cases cited (7)

  • Harit Sheth t/a Harit Sheth Advocates v Sharma Charania
    [2014] eKLR
  • Simon Kirima Muraguri & another v Equity Bank (Kenya) Limited & another
    [2021] eKLR
  • Gladys Jepkosgei Boss v Star Publication Limited
    [2021] eKLR
  • Dhanjal Investment Ltd vs Shabaha Investment Ltd
    [1998] eKLR
  • Kandlal Resturant v Devshi & Company
    (1952) EACA 77
  • Souza Figuerido & Company Ltd v Mooring Hotel Ltd
    (1959) EA 425
  • Kenya Trade Combine Ltd v N. M. Shah
    [2001] eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 35 Rule 1 of the Civil Procedure Rules (inherent jurisdiction and summary procedure)

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, "Kalii v Masika & 11 others (Environment & Land Case 42 of 2017) [2024] KEELC 999 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/999/eng@2024-02-21

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