[2019] KEELC 3826 (KLR)
The court found that the defence raised triable issues, particularly regarding the defendant's possession of the suit property and his prior litigation over the same land. The existence of these issues means the matter should proceed to full hearing rather than be summarily determined. The drastic remedy of striking...
Source-derived case information.
- Citation
- [2019] KEELC 3826 (KLR)
- Parties
- Plaintiff: Irene Maitha Mbogo; Defendant: Edward Ngigi Muiga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 694 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Application to Strike Out Defence
- Outcome
- application dismissed
- Legal Topics
- Striking Out of Pleadings, Innocent Purchaser, Possession of Land, Triable Issues
- Source Language
- en
Source-derived case record
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Parties
Irene Maitha Mbogo
Plaintiff
Edward Ngigi Muiga
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Strike Out Defence
Legal Issues
- 1 Whether the defence should be struck out under Order 2 Rule 15(1)(a) of the Civil Procedure Rules.
- 2 Whether the plaintiff is an innocent purchaser for value without notice.
- 3 Whether the defendant's possession and prior litigation raise triable issues.
Ratio Decidendi
The court found that the defence raised triable issues, particularly regarding the defendant's possession of the suit property and his prior litigation over the same land. The existence of these issues means the matter should proceed to full hearing rather than be summarily determined. The drastic remedy of striking out the defence is not warranted where there are questions that require examination at trial, such as the circumstances under which both parties claim rights to the property and the effect of the defendant's prior possession and litigation. The application to strike out the defence was therefore dismissed.
Court Disposition
application dismissed
Orders
- The application to strike out the defence is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
ENVIRONMENT & LAND COURT
ELC CASE NO. 694 OF 2017
IRENE MAITHA MBOGO..........PLAINTIFF
=VERSUS=
EDWARD NGIGI MUIGA.......DEFENDANT
RULING
1. This is a ruling in respect of a notice of motion dated 6th August 2018. The application is brought by the plaintiff/applicant who seeks striking out of the defence with costs. The application is expressed to be brought under the provisions of Order 2 Rule 15(1) (a) of the Civil Procedure Rules.
2. The respondent who was duly served with the application neither filed grounds of opposition nor replying affidavit. The applicant contends that she is the registered owner of the suit property and that at the time of purchase of the suit property she was not aware of the respondent’s interest in the same; that she came to know that the respondent had filed ELC No.328 of 2011 (Edward Ngigi Muigai Vs Johnson Ochieng’Ager)who had obtained injunctive orders in his favour but that he did not register the order against the title. The applicant therefore contends that she is an innocent purchaser for value without notice of any defect in the title.
3. In an application under order 2 Rule 15(1 (a), no evidence is required. The applicant has however annexed a supporting affidavit which is contrary to the Rules of Civil Procedure. I have perused the pleadings herein. The Respondent has indicated that he had entered into a sale agreement with one Johnson Ochieng Ager who put him in possession of the suit property. As at the time the applicant purchased the same property, he was already in possession and is the one in possession. If this be true and given that the respondent had filed a suit against the said Johnson Ochieng Ager, there is need for this suit to go to full hearing so that it can be known how this may have happened.
4. This is a case in which the drastic step of striking out a defence cannot be taken. The defence on record has triable issues and triable issues do not mean a case which will finally succeed. I therefore dismiss the applicant’s application with no order as to costs as there was no reply or grounds of opposition filed against it.
It is so ordered.
Dated, Signed and delivered at Nairobi on this 28thday of March 2019.
E.O.OBAGA
JUDGE
In the presence of;-
Mr. Njagi for Plaintiff
Court Assistant: Hilda
E.O.OBAGA
JUDGE