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)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether failure to serve summons to enter appearance warrants striking out the suit
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
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.
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
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
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.
Legal principles established
#- 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
#- 1.The Amended Plaint dated 26th January, 2024 is admitted as part of the court record
- 2.The Defendants are granted leave of twenty one (21) days to file and serve amended Defences
- 3.The Notice of Motion application dated 21st February, 2024 is dismissed
- 4.Costs in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.