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ELCDismissedCivil Suit No E288 of 2022· [2024] KEELC 1609 (KLR)

Kenyariri v Double Win Company Ltd & 2 others (Civil Suit E288 of 2022) [2024] KEELC 1609 (KLR)

Environment and Land Court
14 March 2024
OAO. A. Angote
2,969 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to strike out a property developer's defence, ruling one genuine disputed fact is enough to earn a full trial.

What this practically means

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Executive summary

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The Plaintiff, who had purchased apartments A102 and A105 pursuant to a sale agreement dated 3rd February 2020, moved the Environment and Land Court at Nairobi by a Motion dated 27th November 2023 seeking to strike out the Defendants' statement of Defence dated 2nd November 2023 as frivolous and a sham, and to have judgment entered on admission with the suit proceeding to formal proof. The Plaintiff argued that the Defence contained admissions and falsehoods, notably that the Mother Title was unencumbered when it showed an Equity Bank charge of Kshs 220,000,000, and that conversion of the title had already occurred. The Defendants countered that the charge had been discharged, the title returned and surrendered for conversion, that change of user was pending on Ardhi Sasa for reasons beyond their control, and that striking out the Defence would violate their right to a fair hearing under Article 50. The court framed two issues: whether the Defence should be struck out as frivolous and a sham, and whether judgment should be entered on admission. Relying on Order 2 Rule 15 and settled authority including D.T. Dobie, Blue Shield and Saudi Arabian Airlines, the court held that striking out is drastic and used sparingly, and that the Defence raised bona fide triable issues including the state of the title, shareholding of the management company, the legitimacy of monies collected, and jurisdiction given the arbitration clause. On the Order 13 application, the court held that judgment on admissions is discretionary and requires clear, unambiguous and unconditional admissions; the Defendants' concessions were conditional and not ‘plain and obvious’. The application was dismissed with costs on 14th March 2024.

Key legal issues

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01

Whether the Defence should be struck out as frivolous and a sham

Holding

The Defence raises triable issues and should not be struck out.

Reasoning

Applying Order 2 Rule 15 and settled principles from D.T. Dobie and Blue Shield, striking out is drastic and used sparingly. The Defence denies breach, conceding only delays caused by factors beyond the Defendants' control. Factual disputes exist on encumbrance of the title, shareholding of the management company, legitimacy of monies collected, and jurisdiction given the arbitration clause. A single triable issue entitles a defendant to defend; hence striking out was unwarranted.

p. 5
02

Whether judgment should be entered on admission under Order 13

Holding

Judgment on admission refused; the concessions are conditional, not plain and obvious.

Reasoning

Order 13 Rules 1 and 2 permit judgment on admissions, but the power is discretionary, not mandatory. Admissions must reflect a conscious and deliberate intention to be bound, and be clear, unambiguous and unconditional. Judgment on admission denies the sued party a trial and appeal on merits. The Defendants' concessions here are conditional and not ‘as plain as a spike staff’, so judgment on admission was not warranted.

p. 6

Legal principles established

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  • Striking out pleadings is a drastic remedy to be used sparingly and only where the pleading is clearly untenable.
  • A defendant need only demonstrate a single triable issue to be entitled to defend an action.
  • Final judgment on admissions may only be entered where the admissions are clear, unambiguous and unconditional; judgment on admission is discretionary, not a right.

Court orders

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  1. 1.The application dated 27th November, 2023 is dismissed with costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23(1), 40(1), 47, 50
  • Civil Procedure ActSection 3A
  • Civil Procedure Rules, 2010Order 2 Rule 15; Order 13 Rules 1 and 2; Order 51 Rule 1

Cases cited (9)

  • Blue Shield Insurance Company Ltd v Joseph Mboya Oguttu
    [2009] eKLR
  • D.T. Dobie and Company (Kenya) Ltd v Muchina
    (1982) KLR 1
  • Cail Zeiss Stiftung v Ranjuer & Keeler Ltd and others (No.3)
    (1970) ChpD 506
  • Olympic Escort International Co. Ltd. & 2 Others v Parminder Singh Sandhu & Another
    [2009] eKLR
  • Saudi Arabian Airlines Corporation v Sean Express Services Limited
    (2014) eKLR
  • Patel v Ea Cargo Handling Services Limited
    (1974) EA 75
  • Maseno University v Bubble Engineering Company Limited
    KSM CA Civil Appeal No. 29 of 2007 [2019] eKLR
  • Agricultural Finance Corporation v Kenya National Assurance Company Ltd
    NRB CA Civil Appeal No. 271 of 1996 (UR)
  • Choitram v Nazari
    (1982-88) 1 KAR 437
Jurisdiction invoked
Articles 23(1) and 40(1) of the Constitution of Kenya, 2010; Section 3A of the Civil Procedure Act and Orders 2(15), 13(2) and 51(1) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenyariri v Double Win Company Ltd & 2 others (Civil Suit E288 of 2022) [2024] KEELC 1609 (KLR)", Case Analysis (2024). Civil Suit No E288 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1609/eng@2024-03-14

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