[2011] KEHC 841 (KLR)
The court found that the defendant's statement of defence raised triable issues, including unresolved boundary disputes between the parcels of land and allegations regarding the succession process and possible fraud. These matters require the adduction of evidence and cannot be resolved in a summary manner. The...
Source-derived case information.
- Citation
- [2011] KEHC 841 (KLR)
- Parties
- Plaintiff: Joseph Abongo; Defendant: Moses Odoyo Nyaoke; Applicant: Dickens Ayub Odhiambo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 70 of 2010
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Defence
- Outcome
- Application to strike out defence disallowed; costs in the main suit.
- Judges
- HK Chemitei
- Legal Topics
- Striking Out of Pleadings, Triable Issues, Boundary Disputes, Succession and Title, Allegations of Fraud
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Abongo
Plaintiff
Moses Odoyo Nyaoke
Defendant
Dickens Ayub Odhiambo
Applicant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Defence
Legal Issues
- 1 Whether the defendant's statement of defence should be struck out as disclosing no reasonable defence.
- 2 Whether the plaintiff is entitled to judgment on the basis of being the registered owner of the suit property.
- 3 Whether the issues raised in the defence, including boundary disputes and allegations of fraud, require a full trial.
Ratio Decidendi
The court found that the defendant's statement of defence raised triable issues, including unresolved boundary disputes between the parcels of land and allegations regarding the succession process and possible fraud. These matters require the adduction of evidence and cannot be resolved in a summary manner. The court emphasized that striking out a defence is a drastic remedy to be exercised sparingly and only in clear cases. Given the existence of genuine disputes of fact and law, the application to strike out the defence was disallowed, and the matter was directed to proceed to full trial.
Court Disposition
Application to strike out defence disallowed; costs in the main suit.
Orders
- Plaintiff's application to strike out the defence is dismissed.
- Costs shall be in the main suit.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CIVIL SUIT NO. 70 OF 2010
JOSEPH ABONGO ……………………................................….........................………………PLAINTIFF
VERSUS
MOSES ODOYO NYAOKE ……………..........................................................……………..DEFENDANT
AND
DICKENS AYUB ODHIAMBO ………...........................................................……………….APPLICANT
RULING
The plaintiff’s application dated 4th November 2010 prays that the defendants statement of Defence dated 3rd June 2010 be struck out and judgment be entered for the plaintiff against the defendant as prayed in the plaint. He further prays for costs. The same is supported by the affidavit of the plaintiff sworn on 4th October 2010. The defendant did file a replying affidavit sworn on 25th January 2011. From the on set it has always been held and indeed it’s a trite law now that striking out a pleading and in this case a defence should be done carefully and sparingly. In every circumstances an opportunity should be accorded to an individual to ventilate his case even when the same is frivolous but with an iota of merit
I have read carefully the rival affidavits together with the submissions filed by both counsels. I would agree with the plaintiff counsel that his client is the current registered owner of the suit property.That alone entitles him to claim an overriding right over any other person including the defendant. Nevertheless I have read the defendant defence dated 3rd June 2010. In my opinion the same raise triable issues.
One of them include the fact that there seems to be a boundary dispute which has been existing between the parcels of land namely KISUMU / KOGUTA / 170 and KISUMU / KOGUTA / 165. The same is unresolved.This is buttressed by the annextures of the defendant in his replying affidavit, namely the minutes of Upper Nyakach Land Control Board.
Further there is an issue regarding succession proceedings which led the plaintiff obtain title.There is an allegation of fraud allegedly purportedly by the plaintiff.
As stated earlier on this are issues which need adduction of evidence. They can’t be done in a summary manner. The land Registrar in my opinion need to shade some light. Being a land issue I think its worthy that the same goes to full trial. The upshot of this is that I disallow the plaintiff’s application and the cost shall be in the main suit.
Orders accordingly.
Dated, signed and delivered at Kisumu this 11th day ofNovember 2011.
H. K. CHEMITEI
JUDGE
HKC/aao