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ELCDismissedNot stated in the judgment as provided· [2025] KEELC 5765 (KLR)

Kianda Foundation Educational Trust v Fit Tight Fasteners Ltd & 3 others (Environment and Land Case E006 of 2023) [2025] KEELC 5765 (KLR)

Environment and Land Court of Kenya
31 July 2025
1,509 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kajiado land court refused to strike out a defence filed late, confirming that courts hesitate to lock parties out of a fair hearing.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Kajiado, delivered virtually by M.D. Mwangi, J, on 31st July 2025, determined the Plaintiff's Notice of Motion dated 14th April 2025 seeking to strike out the 1st and 2nd Defendants' defence and accompanying documents filed on 17th February 2025, together with an alleged out-of-time notice of appeal, on the ground that they were filed and served outside the statutory timelines without leave. The defendants opposed the application, explaining that after the suit was instituted in early 2023 they entered appearance and filed a replying affidavit; the parties consented to a boundary determination by the Land Registrar, whose report was delayed. On 20th March 2024 the court directed that pleadings remain open until 27th June 2024, and after receiving the Land Registrar and Surveyor's reports in November 2024 the defendants filed their defence and counterclaim. The court framed a single issue: whether the motion was merited. Relying on the Court of Appeal decisions in Uchumi Supermarkets Limited & another v Sidhi Investments Limited and Crescent Construction Co. Ltd v Delphis Bank Ltd, the court held that striking out pleadings is a draconian remedy of last resort to be exercised with great care and caution. Finding that its own directions had reopened the pleadings and that the defence raises serious issues on the history and true proprietorship of the suit property, the court declined to strike out the defence, found the notice-of-appeal prayer misdirected since no notice of appeal existed on record, dismissed the application with costs in the cause.

Key legal issues

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01

Whether the 1st and 2nd Defendants' defence and accompanying documents, filed after the statutory timelines, should be struck out

Holding

The application was dismissed because the court's own directions had kept pleadings open beyond the statutory timelines and the defence raises serious triable issues on ownership of the suit property

Reasoning

From the record, the court had, on 20th March 2024, ordered that pleadings remain open until 27th June 2024 and granted parties liberty to file pleadings after the statutory timelines. The defendants availed themselves of that window after the Land Registrar and Surveyor's reports were received. The defence raises serious issues on the history and true proprietorship of the suit property, and striking out is a draconian remedy of last resort that should not drive a litigant from the seat of justice.

p. 3
02

Whether the motion could strike out an alleged Notice of Appeal

Holding

That prayer was misdirected as no notice of appeal existed on the record

Reasoning

The plaintiff alleged that the defendants filed a notice of appeal out of time without leave. The defendants denied ever filing or serving any notice of appeal and pointed out that no ruling or judgment had been rendered to necessitate an appeal. On perusal of its own record the court confirmed no notice of appeal existed, rendering that prayer misdirected.

p. 4

Legal principles established

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  • Striking out a pleading is a draconian remedy and an order of last resort, exercisable only where the grounds under Order 6 Rule 13(1)(b) and (d) are established
  • The power to strike out a pleading is discretionary and must be exercised with the greatest care and caution so that no litigant is driven away from the seat of justice

Court orders

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  1. 1.The Notice of Motion dated 14th April, 2025 is dismissed
  2. 2.Costs shall be in the cause
Jurisdiction invoked
Article 159 of the Constitution; Sections 1A, 1B, 3A & 3B of the Civil Procedure Act; Order 2 Rules 15, 5 & Rule 1 of the Civil Procedure Rules

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, "Kianda Foundation Educational Trust v Fit Tight Fasteners Ltd & 3 others (Environment and Land Case E006 of 2023) [2025] KEELC 5765 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5765/eng@2025-07-31

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