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ELCDismissedNot stated in the judgment as provided· [2024] KEELC 7495 (KLR)

Abdalla (Suing as the Administrator of the Estate of Mohammed Hussein Absura (Deceased)) v United Care Limited & 2 others (Environment & Land Case 151 of 2018) [2024] KEELC 7495 (KLR)

Environment and Land Court
11 November 2024
2,314 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The 1st Defendant's Notice of Motion dated 21st February, 2024 sought to strike out the Amended Plaint dated 26th January, 2024 and the Plaintiff's entire suit, claiming ownership of LR No. 12715/690. It argued that the Plaintiff never extracted and served summons to enter appearance for over four years, that leave granted on 24th November, 2022 to substitute the deceased Plaintiff lapsed, and that the Amended Plaint incorporated amendments without leave, causing the suit to abate. The Plaintiffs, administrators of the Estate of the late Mohamed Hussein Absura appointed by the Kadhi's Court at Nairobi in Succession Cause No. 56 of 2017, opposed, blaming an erstwhile advocate's failure to release the file for the delay, noting the 1st Defendant filed a Defence in 2018 and fully participated, and inviting the court's inherent jurisdiction under Section 95 of the Civil Procedure Act and Article 159(2)(d) of the Constitution. The sole issue was whether the Amended Plaint and suit should be struck out. The court held the power to strike out must be sparingly exercised; the 1st Defendant's unconditional appearance and participation waived any defect in service without demonstrated prejudice; late filing of the Amended Plaint was a procedural technicality; and the Amended Plaint raised triable issues on ownership of the suit land to be determined on merit. The court dismissed the application, admitted the Amended Plaint, granted the Defendants twenty-one days to file amended Defences, and made no order as to costs, costs being in the cause.

Key legal issues

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01

Whether failure to serve summons to enter appearance warrants striking out the suit

Holding

No; the 1st Defendant filed a Defence and fully participated from 2018 without raising the issue, and the appearance operated as a waiver of any defect in service, with no prejudice demonstrated

Reasoning

The rationale for service is to alert the defendant of the suit. The 1st Defendant filed a Notice of Appointment of Advocates, Replying Affidavit, Statement of Defence and fully participated, never contesting service. Relying on Nanjibhai Prabhudas, defects in service are irregularities capable of waiver; unconditional appearance constituted voluntary and complete waiver, and no prejudice was shown.

p. 4
02

Whether the Amended Plaint filed late, allegedly without valid leave and after expiry of substitution timelines, caused the suit to abate or justified striking out

Holding

No; time could be enlarged under Section 95 of the Civil Procedure Act and Order 50 Rule 6; the suit did not abate since the court had allowed substitution; the Amended Plaint raised triable issues on ownership to be determined on merit

Reasoning

The Plaintiffs explained the delay (succession proceedings and erstwhile advocate's failure to release the file). Section 95 and Order 50 Rule 6 permit enlargement of time even after expiry. Delay in filing the Amended Plaint was a procedural technicality under Article 159(2)(d); no prejudice was shown as the Amended Plaint was served and the Defendants could file amended Defences.

p. 5

Legal principles established

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  • The power to strike out pleadings must be sparingly exercised and only in the clearest of cases
  • An unconditional appearance by a defendant constitutes voluntary and complete waiver of any defect in service of summons to enter appearance
  • Courts should not treat incorrect procedural acts as nullities unless of a most fundamental nature; matters of procedure are not normally fundamental
  • Justice shall be administered without undue regard to procedural technicalities under Article 159(2)(d)

Court orders

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  1. 1.The Amended Plaint dated 26th January, 2024 is admitted as part of the court record
  2. 2.The Defendants are granted leave of twenty one (21) days to file and serve amended Defences
  3. 3.The Notice of Motion application dated 21st February, 2024 is dismissed
  4. 4.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure Rules, 2010Order 2 Rule 15(1)
  • Civil Procedure Rules, 2010Order 5
  • Civil Procedure Rules, 2010Order 5 Rule 8
  • Civil Procedure Rules, 2010Order 5 Rule 2
  • Civil Procedure Rules, 2010Order 50 Rule 6
  • Civil Procedure ActSection 95
  • Civil Procedure ActSections 3 and 3A
  • Interpretation and General Provisions ActSection 59

Cases cited (4)

  • Ramji Megji Gudka Ltd –Vs- Alfred Morfat Omundi Michira & 2 Others
    [2005] eKLR
  • DT Dobie & Company (Kenya) Ltd. V. Muchina
    [1982] KLR 1
  • Nanjibhai Prabhudas & Company Ltd v Standard Bank Ltd
    [1968] EA (K) 670
  • Republic Vs. District Land Registrar, Uasin Gishu & Anor
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction over land disputes; inherent jurisdiction under Sections 3, 3A and 95 of the Civil Procedure Act and Article 159(2)(d) of the Constitution

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, "Abdalla (Suing as the Administrator of the Estate of Mohammed Hussein Absura (Deceased)) v United Care Limited & 2 others (Environment & Land Case 151 of 2018) [2024] KEELC 7495 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7495/eng@2024-11-11

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