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ELCStruck OutNot stated in the judgment· [2024] KEELC 4290 (KLR)

Injera v Lukhongo; Lukhongo (Interested Party) (Environment & Land Case 27 of 2021) [2024] KEELC 4290 (KLR)

Environment and Land Court
27 May 2024
1,423 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer's case was struck out because he never updated his claim after the original defendant died, leaving nothing for the court to decide.

What this practically means

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Executive summary

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The plaintiff sued the defendant seeking a permanent injunction restraining trespass and dealing with land parcel Nandi/Kapkangani/380, which he claimed to have purchased in two portions (1.5 acres total) from one Chelel Rono. The defendant died during the pendency of the suit; on 15 December 2021 the plaintiff's counsel indicated he was withdrawing the suit against the deceased defendant as abated and wished to proceed against the interested party. The suit proceeded undefended, with the plaintiff testifying as the sole witness. He stated that the vendor could not be traced, the agreement for the additional 0.5 acres was unavailable, and no transfer had been registered in his name. Before determining the merits, the court framed four issues, the first being whether a competent suit existed. Applying Karugi v Kabiya, the court noted that the undefended status of the suit did not lighten the plaintiff's burden of proof. On the competence issue, the court held that after withdrawing the suit against the deceased defendant, the plaintiff was obliged to amend the plaint to plead a cause of action and reliefs against the interested party, or to convert her into a substantive defendant. He did not do so. As no prayers were sought against the interested party, the court found there was no competent suit before it, declined to consider the merits of the remaining issues, and struck out the suit with no orders as to costs. Judgment was delivered at Kapsabet on 27 May 2024 by Hon. M. N. Mwanyale, Judge.

Key legal issues

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01

Whether a competent suit existed before the court after withdrawal of the suit against the deceased defendant

Holding

There was no competent suit; the plaint sought relief only against the defendant and no prayers were sought against the interested party, and the plaintiff failed to amend the plaint

Reasoning

Upon withdrawal of the suit against the deceased defendant, the plaintiff was obliged to amend the plaint to plead a cause of action against the interested party or to convert her into a substantive defendant. The plaintiff did not do so. Consequently there were no prayers against the interested party and the court found no competent suit before it, striking out the suit without considering the merits.

p. 3
02

Standard of proof in an undefended suit

Holding

The plaintiff remained under a duty to prove his case on the required standard notwithstanding that the matter proceeded undefended

Reasoning

Relying on the Court of Appeal decision in Karugi and another v Kabiya and 3 others (1983) eKLR, the court held that the burden on a plaintiff to prove the case remains the same throughout and does not lessen merely because the matter proceeds by way of formal proof or is undefended.

p. 3

Legal principles established

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  • Even in an undefended suit heard by way of formal proof, the plaintiff bears the burden of proving the case to the required standard throughout; the burden is not lessened because the suit is undefended
  • Where a suit against a defendant is withdrawn as abated, the plaintiff must amend the plaint to plead a cause of action and reliefs against any remaining party; absent such amendment, no competent suit exists

Court orders

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  1. 1.The suit is struck out with no orders as to costs

Authorities

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Cases cited (1)

  • Karugi and another v Kabiya and 3 others
    1983 (eKLR)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land (suit transferred to Kapsabet ELC upon its establishment)

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, "Injera v Lukhongo; Lukhongo (Interested Party) (Environment & Land Case 27 of 2021) [2024] KEELC 4290 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4290/eng@2024-05-27

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