[2020] KEELC 528 (KLR)

[2020] KEELC 528 (KLR)

The court found that the Magistrate erred in law and fact by striking out the Appellants' defence without considering whether it raised bona fide triable issues. The defence contained denials of trespass, assertions of long-term occupation, and challenges to the court's jurisdiction, all of which required judicial...

Source-derived case information.

Citation
[2020] KEELC 528 (KLR)
Parties
Appellant: Fatuma Ahmed Mohammed; Appellant: Mariam Ahmed Mohammed; Respondent: Charles Mwangi Gitundu
Court
Environment and Land Court
Court Station
Environment and Land Court at Kajiado
Jurisdiction
Kenya
Judgment Date
25 November 2020
Case Number
Environment and Land Appeal 16 of 2018
Procedural Posture
Civil Appeal / Judgment on Appeal
Outcome
Appeal partially allowed.
Legal Topics
Striking Out of Pleadings, Triable Issues, Adverse Possession, Jurisdiction of Courts, Eviction Orders
Source Language
english
Land and Property Civil Procedure Striking Out of Pleadings Triable Issues Adverse Possession Jurisdiction of Courts Eviction Orders

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Parties

Fatuma Ahmed Mohammed

Appellant

Mariam Ahmed Mohammed

Appellant

Charles Mwangi Gitundu

Respondent

Procedural Posture

Civil Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the Magistrate erred in law and fact by striking out the Appellants' Defence and entering judgment for the Respondent.
  2. 2 Whether the appeal is merited.
  3. 3 Who should bear the costs of the appeal.

Ratio Decidendi

The court found that the Magistrate erred in law and fact by striking out the Appellants' defence without considering whether it raised bona fide triable issues. The defence contained denials of trespass, assertions of long-term occupation, and challenges to the court's jurisdiction, all of which required judicial examination at trial. The summary procedure of striking out pleadings should be used sparingly and only in clear cases, and the right to a fair hearing under Article 50(1) of the Constitution was infringed by denying the Appellants an opportunity to be heard on the merits. The appeal was therefore allowed to the extent of setting aside the ruling and reinstating the defence for...

Court Disposition

Appeal partially allowed.

Orders

  • The ruling delivered on 30th August, 2018 is set aside.
  • The Appellants' defence in Kajiado CMCC No. 154 of 2014 is reinstated and the matter is to be heard and determined on its merits.