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ELCDismissed· [2024] KEELC 1074 (KLR)

Janian Enterprises Limited v Kiragu (Environment & Land Case 7 of 2023) [2024] KEELC 1074 (KLR)

Environment and Land Court of Kenya
29 February 2024
JOJ. O. Olola
2,417 words in judgment
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The bottom line

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A Kenyan land court refused to strike out a defendant's defence over a missing memorandum of appearance, confirming such omissions can be fixed.

What this practically means

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Executive summary

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Janian Enterprises Limited, the plaintiff in a land dispute before the Environment and Land Court at Nyeri, moved the court by Notice of Motion dated 23rd March 2023 seeking to strike out the defendant Patrick Kanyora Kiragu's Defence and Counterclaim, to have the suit proceed by formal proof, and to stay its defence to the counterclaim. The plaintiff argued that the defence was defective because the defendant never entered appearance or served a memorandum of appearance, that interlocutory judgment had already been sought in default, and that the counterclaim was res judicata having been raised in Nyeri HCCC No. 2 of 2019, which was said to have been finally adjudicated. The defendant replied that the omission of a memorandum of appearance was curable, that his delay was caused by illness and lack of funds, that no interlocutory judgment had been entered (and none applies to unliquidated land claims), and that the earlier High Court suit was dismissed for want of prosecution, never on merit. Justice J. O. Olola applied Order 2 Rule 15 of the Civil Procedure Rules and the settled principle that striking out is a drastic remedy used sparingly. He found the omission of appearance curable, no valid interlocutory judgment on an unliquidated land claim, and, applying Section 7 of the Civil Procedure Act and the five-limb res judicata test, that the former suit was dismissed for non-attendance and the plaintiff's own counterclaim there was struck out for want of jurisdiction, so the counterclaim here was not res judicata. The motion was dismissed with each party bearing their own costs.

Key legal issues

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01

Effect of failure to file a memorandum of appearance

Holding

The omission is not fatal; it is curable and does not justify striking out the defence

Reasoning

While entry of appearance submits a party to the court's jurisdiction and identifies it for the claim, the court held that filing a defence without a memorandum of appearance can be remedied by extension of time. Striking out ends in driving a party from the judgment seat and must be used sparingly, only where the pleading is clearly untenable or a complete sham.

p. 3
02

Whether interlocutory judgment had been entered against the Defendant

Holding

No interlocutory judgment was shown to have been entered, and any endorsement would be irregular since the claim was unliquidated land claim

Reasoning

Although the plaintiff requested interlocutory judgment under Order 10 Rule 4 on the same day the defence was filed, there was no evidence any judgment was endorsed. Citing Solomon Mwobobia Nkuraaru v Jacob Mwiti, the court noted interlocutory judgment lies only for liquidated claims, and the subject land claim was not liquidated.

p. 4
03

Whether the Defendant's Counterclaim is res judicata

Holding

Not res judicata; the former suit was dismissed for non-attendance and the plaintiff's counterclaim there was struck out for want of jurisdiction

Reasoning

Applying Section 7 of the Civil Procedure Act and the Bernard Mugo Ndegwa criteria, the court found the Nyeri HCCC No. 2 of 2019 claim was dismissed for non-attendance, not heard on merit, and the High Court (Muchemi J) held it lacked jurisdiction over the land matters in the counterclaim. Hence the requirements of jurisdiction and final determination were not met.

p. 5

Legal principles established

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  • Striking out a pleading is a drastic remedy to be exercised sparingly and only where the pleading is clearly untenable
  • Omission to file a memorandum of appearance where a defence has been filed is curable and not fatal
  • Interlocutory judgment may only be entered in respect of a liquidated claim
  • Res judicata requires a matter heard and finally decided by a court with jurisdiction; dismissal for non-attendance and striking out for want of jurisdiction do not satisfy the test

Court orders

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  1. 1.The Motion dated 23rd March 2023 is dismissed
  2. 2.Each Party shall bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15
  • Civil Procedure RulesOrder 6 Rule 1
  • Civil Procedure RulesOrder 10 Rule 9
  • Civil Procedure RulesOrder 10 Rule 4
  • Civil Procedure Act, Cap. 21Section 7

Cases cited (4)

  • Blue Shield Company Limited v Joseph Mboya Oguttu
    (2009) eKLR
  • D.T. Dobie & Company (Kenya) Limited v Muchina
    (1982) KLR 1
  • Solomon Mwobobia Nkuraaru v Jacob Mwiti
    (2015) eKLR
  • Bernard Mugo Ndegwa v James Nderitu Githae & 2 Others
    (2010) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction; Motion expressed to be brought 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, "Janian Enterprises Limited v Kiragu (Environment & Land Case 7 of 2023) [2024] KEELC 1074 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1074/eng@2024-02-29

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