Ngula v Kuria & 2 others (Environment & Land Case 115 of 2011) [2025] KEELC 4518 (KLR)
The bottom line
#A Kenyan land court refused to throw out a defence over a missing verifying affidavit, showing courts prioritize fair hearings over procedural technicalities.
What this practically means
#Executive summary
#Key legal issues
#Whether absence of a verifying affidavit on a counterclaim warrants striking out
No - striking out is discretionary and permissive; the court declined to strike out the defence and counterclaim on this ground
Order 4 Rule 1(6) confers a discretionary power, not a mandatory duty. The defence including counterclaim had been on record since 2014, the plaintiff filed a reply to defence and defence to counterclaim, and no prejudice was demonstrated after closing his case. Relying on Article 159(2)(d) and the oxygen principle, the court held the defence raises triable issues and should not be sacrificed for the procedural defect.
Whether a supplementary list of documents filed without leave after close of pleadings should be expunged
Yes - the court expunged the Supplementary List of Documents dated 7th June 2019
Counsel had earlier confirmed compliance with Order 11 and there was no indication of intent to file further documents. The parties had closed their cases and an earlier application to reopen had been declined. Leave is discretionary and should not be used to prejudice an opposing party.
Whether leave to amend the defence and counterclaim should be granted at this late stage
Yes - leave granted, confined to curing the procedural defect of including a verifying affidavit
Section 100 CPA permits amendments at any stage; the amendment sought only brings the pleading into conformity with Order 7 Rule 5(a) without introducing new issues, and causes no prejudice to the plaintiff or 3rd defendant. The court directed filing within seven days.
Legal principles established
#- The power to strike out a plaint or counterclaim for lack of a verifying affidavit is permissive, not mandatory, and should be exercised sparingly
- Amendments of pleadings should be liberally allowed if they can be made without injustice, or where injustice can be compensated by costs
- Section 100 of the Civil Procedure Act permits courts to allow amendments at any stage to determine real substantive issues
Court orders
#- 1.Plaintiff's Notice of Motion dated 28th November 2024 allowed only to the extent of expunging from the record the Supplementary List and Bundle of Documents dated 7th June 2019 filed out of time and without leave
- 2.1st and 2nd Defendants' Notice of Motion dated 26th February 2025 allowed; leave granted to amend their Statement of Defence including Counterclaim
- 3.1st and 2nd Defendants directed to file and serve their Amended Statement of Defence including Counterclaim within seven (7) days
- 4.Costs to be in the cause
- Jurisdiction invoked
- Original civil jurisdiction under the Civil Procedure Act (Cap 21) and Civil Procedure Rules, 2010; constitutional provisions invoked: Articles 50(1) and 159(2)(d)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngula v Kuria & 2 others (Environment & Land Case 115 of 2011) [2025] KEELC 4518 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4518/eng@2025-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.