Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissed· [2022] KEELRC 25 (KLR)

Mwaviswa v National Land Commission (Environment & Land Case 644 of 2017) [2022] KEELRC 25 (KLR)

Environment and Land Court
28 April 2022
EWE. K. WABWOTO
1,730 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court refused to strike out a land dispute defence, ruling that cases with genuine disputed issues must go to full trial.

What this practically means

#

Executive summary

#
The Plaintiff moved the court by Notice of Motion dated 17th December 2021 seeking to strike out the Defendant's Statement of Defence dated 8th October 2021 and to enter summary judgment as prayed in the Amended Plaint, on the ground that the defence raised no triable issues and was a sham, vexatious, frivolous and an abuse of process. The Plaintiff argued that the defence offended Order 7 Rule 5 and Order 2 Rule 15 of the Civil Procedure Rules and that the lack of a signature was not a curable technicality; it also relied on Section 13(1) of the Land Act and Order 36 on summary judgment. The Defendant, through a Replying Affidavit of its In-House Counsel, contended that the defence raised serious triable issues. Justice E. K. Wabwoto reviewed the established jurisprudence that striking out is a draconian remedy exercisable only in plain cases, and that a defence raising even one bona fide triable issue must be allowed to proceed to trial. On Order 7 Rule 5, the court held the mandatory accompanying documents apply only where there is a counterclaim, a trial, or reliance on expert evidence, none of which applied, and the oxygen principles under Sections 1A, 1B and 3A of the Civil Procedure Act favoured sustaining the cause. On summary judgment, the court held that Order 36 Rule 1 applies only where no defence has been filed, and in any event the claim was for a declaration of ownership of land requiring evidence, not a liquidated sum. The application was dismissed with no orders as to costs, and the matter set down for hearing.

Key legal issues

#
01

Whether the defence should be struck out

Holding

The defence raises bona fide triable issues and should not be struck out

Reasoning

The court applied the settled principle that a defence raising even one bona fide triable issue must be allowed to proceed to trial. Striking out is draconian and sparingly exercised. The defence disclosed triable issues determinable only after trial, and the overriding objective favours sustaining causes rather than striking out pleadings for curable technicalities.

p. 4
02

Whether the defence is defective for non-compliance with Order 7 Rule 5

Holding

The mandatory accompanying documents were not required as there was no counterclaim, no trial and no reliance on expert evidence

Reasoning

Although 'shall' in Order 7 Rule 5 connotes mandatory action, the mandatory documents apply only where there is a counterclaim, the matter proceeds to trial, or expert evidence is relied upon. None applied, and the oxygen principles under Sections 1A, 1B and 3A of the Civil Procedure Act favour sustaining the suit.

p. 3
03

Whether summary judgment is available to the Plaintiff

Holding

The Plaintiff does not meet the threshold for summary judgment

Reasoning

Order 36 Rule 1 applies only where the defendant has entered appearance but filed no defence; here a defence was filed. Further, the claim is not for a liquidated sum but for a declaration of ownership of land requiring evidence, so the matter is not plain and obvious and must go to trial.

p. 4

Legal principles established

#
  • If a defence raises even one bona fide triable issue, the defendant must be given leave to defend
  • Striking out a pleading is a draconian act resorted to only in plain cases
  • Summary judgment under Order 36 Rule 1 applies only where the defendant has entered appearance but has not filed a defence

Court orders

#
  1. 1.The application dated 17th December 2021 is dismissed
  2. 2.No orders as to costs
  3. 3.Matter to be set down for hearing upon delivery of the ruling

Authorities

#

Legislation

  • Constitution of KenyaArticle 159(2)(d); Article 159
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 2 Rule 15; Order 7 Rule 5; Order 36 Rule 1; Order 36
  • Land ActSection 13(1)

Cases cited (10)

  • Capital Construction Co Ltd vs. National Water Conservation and Pipeline Corporation
    [2013] eKLR
  • Madison Insurance Company Limited v Augustine Kamandu Gitau
    [2020] eKLR
  • Postal Corporation of Kenya vs I.T. Imandar & Others
    [2014]; [2004] 1 KLR 359
  • Job Kilach v Nation Media Group Ltd & Others
    [2015] eKLR
  • Olympic Escort International Co. Ltd. & 2 Others v. Parminder Singh Sandhu & Another
    [2009] eKLR
  • The Co-operative Merchant Bank Ltd. v George Fredrick Wekesa
    Civil Appeal No. 54 of 1999
  • Yaya Towers Limited v Trade Bank Limited (In Liquidation)
    Civil Appeal No. 35 of 2000
  • D.T. Dobie & Company Kenya Limited v Joseph Mbaria Muchina & Another
    [1980] eKLR
  • Jefitha Muchai Mwai v Peter Wangio Thuku
    [2015] eKLR
  • ICDC vs Daber Enterprises Ltd
    (2000) 1 EA 75
Jurisdiction invoked
Civil Procedure Act and Civil Procedure Rules (not stated in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Mwaviswa v National Land Commission (Environment & Land Case 644 of 2017) [2022] KEELRC 25 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/25/eng@2022-04-28

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