Muriithi & 2 others (Suing in His Capacity as the Administrator of the Estate of the Late Joseph Maingi Muriithi) v Karungo & 3 others; Muriithi & 122 others (Interested Parties) (Environment and Land Case Civil Suit 7 of 2012 & Environment & Land Case 814 & 430 of 2013 & 256 of 2021 (Consolidated)) [2024] KEELC 5721 (KLR)
The bottom line
#A Kenyan land court dismissed an attempt to strike out amended pleadings, confirming parties can respond in kind once served with an amended plaint.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Honourable Court is seized of jurisdiction to strike out the Amended Statement of Defence and Counterclaim in the manner sought or whether such an endeavour shall constitute an appeal against the orders of the court made/issued on the 27th March 2023
- 2.Whether the Amended Statement of Defence and Counterclaim has introduced any new issue and/or cause of action, either in the manner adverted to or otherwise
- 3.Whether the Honourable Court ought to strike out the Amended Plaint vide ELC No. E256 of 2021
- 4.Whether the Application beforehand constitutes and/or amounts to an abuse of the due process of the court
Key legal issues
#Jurisdiction to strike out an amended defence and counterclaim filed pursuant to leave
The court lacks jurisdiction to strike out a response pleading filed as of right under Order 8 Rule 1(2); doing so would amount to sitting on appeal over orders of a coordinate jurisdiction
The Applicant had obtained leave to amend its Plaint; upon service, adverse parties automatically accrued a corresponding right to amend their defence and counterclaim. That right is conferred by Order 8 Rule 1(2) of the Civil Procedure Rules and reinforced by the court's orders of 19th April 2023, which were never reviewed or set aside. Striking out the amended pleading would therefore amount to an impermissible appellate review of a coordinate court's orders.
Whether the amendments introduced a new party and new cause of action
No new issue or cause of action was introduced; the amendments responded to the Amended Plaint and the uncontroverted replying affidavit is deemed admitted
The Respondent's Replying Affidavit explained that the impugned paragraphs merely responded to allegations in the Amended Plaint and traced the factual history of ownership of the suit properties. The Applicant filed no Further Affidavit to controvert these averments, so they are deemed admitted. Further, factual controversy cannot be interrogated summarily via an interlocutory application.
Whether the Amended Plaint in ELC No. E256 of 2021 was filed without leave
Leave for joinder and amendment was granted without limitation (by consent), so the Amended Plaint was lawfully filed and protected by Order 1 Rule 10(4)
The Applicant conceded it consented to the joinder application which culminated in the amendment. Since no draft Amended Plaint was on file when leave was granted, the liberty to amend was unrestricted. Having participated in the proceedings leading to the consent orders, the Applicant cannot now seek to strike out the Amended Plaint when those orders have not been reviewed or discharged.
Whether the application is an abuse of the due process of the court
Yes - the application, filed inordinately late and directed at striking out a pleading filed as of right, reeks of mala fides and abuses court process
The Applicant itself first sought and obtained leave to amend, thereby conferring on adverse parties the right to respond. The application to strike out the response was filed about four months after the Amended Defence (31st October 2023 to 6th March 2024), an unexplained and inordinate delay pointing to lack of bona fides and an intent to delay a dispute dating back to 2012.
Legal principles established
#- A party served with an amended pleading accrues a corresponding right to file amended pleadings in response, which the court cannot interfere with absent infringement of the law
- A litigant cannot invoke a fresh application to challenge orders of a coordinate jurisdiction that remain unreviewed and un set aside
- Uncontroverted contents of a replying affidavit are deemed admitted
- Striking out a pleading is a drastic measure to be exercised sparingly and only in the clearest of cases
Court orders
#- 1.The Notice of Motion dated 6th March 2024 is dismissed
- 2.Costs to the 1st Defendant/Respondent in ELC No. 7 of 2012 and the Plaintiff/Respondent in ELC No. E256 of 2021
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 8 Rules 1, 2, 3 and 8 of the Civil Procedure Rules, 2010
Relief refused
#Striking out of the impugned amendments in the 1st Defendant's Amended Defence and Counterclaim in ELC No. 7 of 2012
The amendments were filed as a matter of right pursuant to leave granted by the court and striking them out would amount to sitting on appeal over orders of a coordinate jurisdiction
Striking out of the Amended Plaint in ELC No. E256 of 2021
Leave to amend was granted (by consent) without limitation, so the Amended Plaint was lawfully filed
Costs
Application dismissed with costs to the 1st Defendant/Respondent in ELC No. 7 of 2012 and the Plaintiff/Respondent in ELC No. E256 of 2021
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the 1st Defendant/Respondent herein accrued and earned a legitimate right to file and serve the Amended Statement of Defence and Counterclaim, once same was served with an Amended Plaint on behalf of the Plaintifi/Applicant
any endeavour to strike out and/or expunge the Amended Statement of Defence and Counterclaim will be tantamount to sitting on appeal on the decision of a court of coordinate jurisdiction, which process/endeavour must be eschewed by a conscientious court of law
the Amended Plaint vide ELC E256 of 2021 was lawfully filed in accordance with the lawful orders of the court
striking out of a pleading [ suit] ought to be exercised sparingly and as a a matter of last resort
In a nutshell, it is my finding and holding that the Application dated 6th March 2024, is devoid and bereft of merits. Consequently, same be and is hereby dismissed with costs to the 1st Defendant/ Respondent in ELC No. 7 of 2012 and the Plaintifi/Respondent in ELC No. E256 of 2021.
Issues in the judgment
#The judgment refers inconsistently to the dates of the orders relied on, at one point citing 27th March 2023 and 19th April 2024, elsewhere 19th April 2023
The applicant's name is given as Benson Ritho Mureithi in the supporting affidavit while a proposed interested party is named Stephen Maingi Mureithi, and the judgment also spells him 'Stephen Mainge Mureithi'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muriithi & 2 others (Suing in His Capacity as the Administrator of the Estate of the Late Joseph Maingi Muriithi) v Karungo & 3 others; Muriithi & 122 others (Interested Parties) (Environment and Land Case Civil Suit 7 of 2012 & Environment & Land Case 814 & 430 of 2013 & 256 of 2021 (Consolidated)) [2024] KEELC 5721 (KLR)", Case Analysis (2024). ELC Case No. 7 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5721/eng@2024-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.