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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiff's Reply dated 12th February 2024 should be struck out as confusing/clashing with the earlier Reply of 19th May 2023
No - the operative pleading is the latest Reply dated 12th February 2024, which the 3rd defendant ought to respond to; no confusion exists
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.
Whether striking out is an appropriate remedy
No - striking out is a drastic remedy for hopeless cases only
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.
Whether failure to serve summons on the 2nd defendant justified the application
No - the court record showed existing orders for service by registered post and substituted service, which the plaintiff had complied with by newspaper adverts
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.
Legal principles established
#- 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
#- 1.The 3rd defendant's notice of motion dated 27th June 2024 is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.