Tikolo & another v Owino (Environment and Land Case E001 of 2023) [2025] KEELC 6843 (KLR)
The bottom line
#The High Court struck out a defence filed fraudulently but gave the Defendant a final chance to file a proper defence instead of awarding Ksh 53.57 million by default.
What this practically means
#Executive summary
#Key legal issues
#Validity of pleadings disowned by their purported author
The Notice of Appointment of Advocates and the Statement of Defence were struck out because they were not properly on record, the purported author having denied authorship.
The court found that a pleading cannot stand where its authorship is denied and where the documents impute criminality. Such documents were not properly filed and were therefore liable to be expunged.
Right to be heard on the merits notwithstanding irregular pleadings
Despite striking out the irregular documents, the court exercised discretion to allow the Defendant an opportunity to file a proper defence within 14 days.
The court invoked Section 3A of the Civil Procedure Act, holding that striking out a defence should not automatically shut a litigant out from the seat of justice where triable issues exist. The court noted the Defendant's expressed intention to defend the suit based on a purchase of the suit property and granted leave to regularize.
Default judgment against the Defendant
The court declined to enter default judgment, finding that justice demanded the Defendant be heard.
Having allowed the Defendant an opportunity to defend the suit, the court found no need to consider the remaining prayers in the application, including entry of default judgment for Ksh 53,570,000.
Legal principles established
#- A pleading filed fraudulently and disowned by its purported author ought not to be sustained and must be struck out.
- Where a pleading is struck out, the court retains discretion under Section 3A to allow a party to regularize the record and be heard on the merits in the interests of justice.
Court orders
#- 1.Notice of Appointment of Advocates dated 19/6/2023 struck out and expunged from the record
- 2.Statement of Defence dated 19/6/2023 struck out and expunged from the record
- 3.Time extended for the Defendant to regularize the record and file defence within 14 days of the date of the ruling
- 4.Costs of the application borne by the Defendant
- 5.Plaintiff at liberty to respond further
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 3B of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tikolo & another v Owino (Environment and Land Case E001 of 2023) [2025] KEELC 6843 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6843/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.