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ELCDismissedNot stated in the excerpt· [2024] KEELC 6108 (KLR)

Aziz (Suing in Her Capacity as the Administratix of the Estate of Mohamed Bashir Meraj Din Ahmed Bux) v Muteru & 8 others (Environment & Land Case 275 of 2016) [2024] KEELC 6108 (KLR)

Environment and Land Court (or High Court, not specified in excerpt)
26 September 2024
1,256 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court dismissed an attempt to strike out a land dispute pleading, confirming that the latest version of a pleading is the one that counts.

What this practically means

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Executive summary

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The 3rd defendant filed a notice of motion dated 27th June 2024 seeking to strike out the plaintiff's Reply to its Amended Defence and Defence to Counterclaim dated 12th February 2024, leave to file its own reply out of time, and directions that summons be extracted and served on the 2nd defendant under Order 5 of the Civil Procedure Rules. The 3rd defendant argued that the latest Reply clashed in 'context' and 'philosophy' with the earlier Reply dated 19th May 2023, leaving it unable to decide which pleading to answer, and that failure to serve summons on the 2nd defendant would defeat justice. The plaintiff, through a replying affidavit sworn by counsel Michael Odhiambo Oloo, countered that the application was designed to delay trial, that the 12th February 2024 Reply simply responded to the 3rd defendant's own Amended Defence and Counterclaim dated 6th December 2023, and that substituted service on the 2nd defendant had been effected through newspaper adverts of 6th February 2024 and 26th April 2024 pursuant to court orders. Matheka J held there was no confusion: the operative pleading was plainly the latest Reply of 12th February 2024, which the 3rd defendant ought to answer. Relying on Blue Shield Insurance Co. Ltd v Joseph Mboya Ogutu, the court held striking out is a draconian remedy for hopeless cases only, and citing Olympic Escort International, found the Reply raised bona fide triable issues. On service, the record showed orders of 27th October 2010 (registered post) and 24th June 2019 (substituted service), which the plaintiff had complied with. The application was dismissed with costs.

Key legal issues

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01

Whether the plaintiff's Reply dated 12th February 2024 should be struck out as confusing/clashing with the earlier Reply of 19th May 2023

Holding

No - the operative pleading is the latest Reply dated 12th February 2024, which the 3rd defendant ought to respond to; no confusion exists

Reasoning

The court examined both pleadings and found the later one merely a more detailed defence to counterclaim, with the only change in the 3rd defendant's amended defence being the renumbering from 2nd to 3rd defendant after separation of the 1st and 2nd defendants. The plaintiff's advocates' letter of 25th June 2024 confirmed the latest pleading is operative.

p. 3
02

Whether striking out is an appropriate remedy

Holding

No - striking out is a drastic remedy for hopeless cases only

Reasoning

The court relied on Blue Shield Insurance Co. Ltd v Joseph Mboya Ogutu (2009) eKLR, holding that striking out is draconian and should only be entertained in hopeless cases, which this was not, since the Reply raised bona fide triable issues.

p. 3
03

Whether failure to serve summons on the 2nd defendant justified the application

Holding

No - the court record showed existing orders for service by registered post and substituted service, which the plaintiff had complied with by newspaper adverts

Reasoning

On perusal of the record, orders of 27th October 2010 (registered post) and 24th June 2019 (substituted service) existed; the plaintiff had advertised in the daily newspaper on 6th February 2024 and 26th April 2024. The objection therefore lacked merit.

p. 3

Legal principles established

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  • Striking out of pleadings is a draconian and drastic remedy reserved for hopeless cases
  • A triable issue need not be one the defendant would ultimately succeed on; it need only be bona fide
  • Where successive pleadings exist, the operative pleading is the latest one on record

Court orders

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  1. 1.The 3rd defendant's notice of motion dated 27th June 2024 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63
  • Civil Procedure Rules, 2010Order 51 rule 5; Order 5 rules 1, 5, 7, 8; Order 11 rule 4(d); Order 7 rule 17
  • Constitution of KenyaArticles 159(2)(d) and 50

Cases cited (3)

  • Blue Shield Insurance Co. Ltd vs Joseph Mboya Ogutu
    (2009) eKLR
  • Kenya Commercial Bank v Suntra Investment Bank Ltd
    [2015] eKLR
  • Olympic Escort International Co. Ltd. & 2 Others –vs- Parminder Singh Sandhu & Another
    [2009] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 63 of the Civil Procedure Act (Cap 21); Order 51 rule 5, Order 5 rules 1, 5, 7 and 8, Order 11 rule 4(d) of the Civil Procedure Rules, 2010; Articles 159(2)(d) and 50 of the Constitution of Kenya

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, "Aziz (Suing in Her Capacity as the Administratix of the Estate of Mohamed Bashir Meraj Din Ahmed Bux) v Muteru & 8 others (Environment & Land Case 275 of 2016) [2024] KEELC 6108 (KLR)", Case Analysis (2024). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6108/eng@2024-09-26

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