[2005] KEHC 534 (KLR)
The court found that the defendants admitted to being in occupation of the plaintiff's land but failed to provide any specific particulars of their alleged purchase, such as the date of the agreement, purchase price, or evidence of consent from the Land Control Board. The defence did not specifically plead facts...
Source-derived case information.
- Citation
- [2005] KEHC 534 (KLR)
- Parties
- Plaintiff: Mugo Mathai; Defendant: Joshua K. Kangogo; Defendant: Lawrence K. Kibet
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 30 of 2005
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Defence
- Outcome
- Defence struck out with costs to the plaintiff.
- Legal Topics
- Striking Out Defence, Pleadings Requirements, Trespass to Land, Agency in Land Transactions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mugo Mathai
Plaintiff
Joshua K. Kangogo
Defendant
Lawrence K. Kibet
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Defence
Legal Issues
- 1 Whether the defendants' defence disclosed a reasonable answer to the plaintiff's claim for recovery of land and damages for trespass.
- 2 Whether the defence was frivolous, vexatious, or an abuse of the court process warranting striking out under Order VI Rules 13(1)(b), (c), and (d).
Ratio Decidendi
The court found that the defendants admitted to being in occupation of the plaintiff's land but failed to provide any specific particulars of their alleged purchase, such as the date of the agreement, purchase price, or evidence of consent from the Land Control Board. The defence did not specifically plead facts that would constitute a valid defence to the plaintiff's claim for recovery of land and damages for trespass. The court held that the defence was frivolous, vexatious, and an abuse of the court process, intended only to delay the finalisation of the suit. Consequently, the court exercised its discretion to strike out the defence with costs to the plaintiff.
Court Disposition
Defence struck out with costs to the plaintiff.
Orders
- The defendants' joint statement of defence is struck out.
- Costs of the application awarded to the plaintiff.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Civil Suit 30 of 2005
MUGO MATHAI…………………………….…..…........................…………PLAINTIFF
VERSUS
JOSHUA K. KANGOGO…………………………………….….....1ST DEFENDANT
LAWRENCE K. KIBET………………………………………...…2ND DEFENDANT
RULING
The plaintiff is the registered proprietor of a parcel of land known as KAMPI YA MOTO/KAMPI YA MOTO BLOCK 3/158 measuring 2. 023 hectares.
He filed suit against the defendants alleging that they had unlawfully trespassed thereon and began to cultivate the land. He prayed for evocation orders against them as well as an order for payment of damages for trespass. The defendants filed a joint statement of defence through M/S Kiage & Co. Advocates. They admitted having entered into the plaintiff’s aforesaid property but denied that their entry and occupation was unlawful and without the plaintiff’s knowledge. They alleged that they were in possession as purchasers, having bought the land from M/S Mugai Commercial Agencies Ltd, having sold the same for and on behalf of the plaintiff as his duly authorised agent. They did not state when they bought the land and for how much and neither did they give any other particulars of the alleged transaction. They urged the court to dismiss the plaintiff’s suit with costs.
On 13th June, 2005, the plaintiff filed an application under Order VI Rules 13(1) (b) (c) and (d) and 16 of the Civil Procedure Rules urging the court to strike out the defence for being frivolous and meant to delay a fair disposal of the suit and also being an abuse of the court process.
The application was served upon the defendants’ advocates who acknowledged service of the same by way of stamping on the duplicate copy thereof which was filed in court together with an affidavit of service. However, the defendants did not file any response to the plaintiff’s application.
Order VI Rule 4(2) requires a defendant to an action for the recovery of land to plead specifically every ground of defence on which he relies. Rule 4(1)(a) requires a defendant to plead specifically any aspect which he alleges makes any claim not maintainable in law. In this matter, the defendants did not allege that the plaintiff entered into any lawful agreement with them. They said that they purchased the suit land from the plaintiff’s alleged agent. I would have expected them to state the exact date of the alleged agreement, the purchase price, how and when consent of the area Land Control Board was obtained and so on. They did not do so. Having admitted that they were in occupation of the suit land which I would have expected to be registered in their names had they lawfully purchased the same but having failed to make any specific pleadings as would have shown that their defence was a valid one, I hold that their defence is frivolous and vexatious and an abuse of the court process. It is otherwise calculated to delay the finalisation of the plaintiff’s suit. I strike out the defence with costs to the plaintiff.
DATED, SIGNED AND DELIVERED at Nakuru this 9th day of December, 2005.
D. MUSINGA
JUDGE
9/12/2005