Okech (Suing as the Legal Representative of the Estate of Boaz Okech Okech alias Okech Okech Owour - Deceased) ((Suing as the Legal Representative of the Estate of Boaz Okech Okech alias Okech Okech Owour - Deceased)) v Ombago (Sued in his Individual Capacity and as the Legal Representative of the Estate of Ombago Ogongo alias Alex Ombago Ogongo) & another ((Sued in his Individual Capacity and as the Legal Representative of the Estate of Ombago Ogongo alias Alex Ombago Ogongo)) (Environment & Land Case E002 of 2023) [2024] KEELC 3673 (KLR)
The bottom line
#The Environment and Land Court in Siaya refused to strike out a counterclaim, ruling that genuine disputes about land ownership deserve a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the counterclaim meets the threshold for striking out under Order 2 Rule 15(1)
It does not; the counterclaim raises triable issues and is not frivolous, vexatious or an abuse of process.
The court applied the principles in Kivanga Estates that striking out is draconian and granted sparingly. On the material, the defence asserts the 2021 consent was void ab initio; the green cards show the 2nd defendant as registered owner affected by the consent without joinder or hearing, contrary to Article 50 and audi alteram partem; questions surround the capacity of parties recording the consent and the legality of its adoption after an earlier refusal by Hon. Wambilyanga. These are genuine triable issues that entitle the defendants to their day in court.
Effect of a party not being joined or heard in prior proceedings resulting in a consent order
A consent order adversely affecting a party who was never joined or heard offends the right to fair hearing under Article 50 and the audi alteram partem principle, giving that party a viable challenge in a counterclaim.
The green cards showed the 2nd defendant as registered owner of the suit properties, yet its interests were adversely affected by the consent order of 23/09/2021 in Kisumu CM LA No.12 of 1974 in proceedings in which it was allegedly never joined or heard. The court held this contravened Article 50 of the Constitution and the audi alteram partem principle, so the counterclaim seeking to protect those interests was properly before the court and could not be struck out.
Legal principles established
#- Striking out of pleadings is discretionary and draconian, to be exercised sparingly and in the clearest of circumstances; a pleading raising even a single triable issue should proceed to trial.
Court orders
#- 1.The notice of motion dated 10/11/2023 is dismissed
- 2.Costs of the motion to be in the cause
- Jurisdiction invoked
- Sections 1A, 1B, 3A of the Civil Procedure Act and Order 2 Rule 15(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okech (Suing as the Legal Representative of the Estate of Boaz Okech Okech alias Okech Okech Owour - Deceased) ((Suing as the Legal Representative of the Estate of Boaz Okech Okech alias Okech Okech Owour - Deceased)) v Ombago (Sued in his Individual Capacity and as the Legal Representative of the Estate of Ombago Ogongo alias Alex Ombago Ogongo) & another ((Sued in his Individual Capacity and as the Legal Representative of the Estate of Ombago Ogongo alias Alex Ombago Ogongo)) (Environment & Land Case E002 of 2023) [2024] KEELC 3673 (KLR)", Case Analysis (2024). Siaya ELC Civil Suit (notice of motion dated 10/11/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3673/eng@2024-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.