[2002] KEHC 790 (KLR)
The court found that the defendant's defence did not disclose any reasonable grounds or triable issues. The allegation of fraud and lack of notice was unsubstantiated, as the plaintiff provided evidence of proper notice through the Gazette Notice and the succession proceedings were not opposed by the defendant. The...
Source-derived case information.
- Citation
- [2002] KEHC 790 (KLR)
- Parties
- Plaintiff: Mary Nduta Njaga; Defendant: Wallace Waweru Njuguna
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1116 of 2001
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Defence
- Outcome
- Defence struck out; application allowed; counterclaim set for hearing; costs to plaintiff.
- Legal Topics
- Striking Out of Defence, Eviction Orders, Succession and Administration, Title to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Nduta Njaga
Plaintiff
Wallace Waweru Njuguna
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Defence
Legal Issues
- 1 Whether the defendant's defence discloses any reasonable grounds or triable issues.
- 2 Whether the plaintiff is entitled to an eviction order based on her title as administrator of the estate.
- 3 Whether the defence of fraud and lack of notice in succession proceedings is valid.
Ratio Decidendi
The court found that the defendant's defence did not disclose any reasonable grounds or triable issues. The allegation of fraud and lack of notice was unsubstantiated, as the plaintiff provided evidence of proper notice through the Gazette Notice and the succession proceedings were not opposed by the defendant. The defence was deemed dishonest and unsupported by any documentary evidence. Consequently, the court allowed the application to strike out the defence, holding that there was no valid defence to the plaintiff's claim as administrator and title holder of the land.
Court Disposition
Defence struck out; application allowed; counterclaim set for hearing; costs to plaintiff.
Orders
- The defendant's defence is struck out.
- The application is allowed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE 1116 OF 2001
MARY NDUTA NJAGA …………………….PLAINTIFF
V E R S U S
WALLACE WAWERU NJUGUNA …………DEFENDANT
R U L I N G
This is an application by way of Chamber Summons filed on 21st April 2002 under Order VI r13 of the Civil Procedure Rules and Section 3A of Civil Procedure Act cap 21 for orders that the defendant`s defence be struck out and the court to give eviction order against the plaintiff. It is based on the ground that the defence does not disclose reasonable grounds of defence. In supporting affidavit of Mary Nduta Njaga the applicant sworn on 23rd April 2002 the applicant says that the land belonged to her late husband but devolved on her after his death as administrator of her husbands estate and was decided so in Succession Cause No.276 of 1989, and that the Defendant never opposed the succession case or appointment of the administrator. Plaintiff as the administrator of the Estate she produced the Title Deed and copies of Gazette Notices.
The respondent Wallace Waweru appears at the hearing but did not file any affidavit in reply. In his submission he said that the plaintiff`s claim is not true and that the Title Deed the plaintiff has was obtained by fraud and that he got the land from his mother but he did not show any Title Deed to the land.
I have looked at the defence which was filed on 20th August 2001 on behalf of Wallace Njuguna, the defence was filed by Ms Mwaura & Co. Advocates and says that the letters of administration were obtained by fraud in that the applicant failed to notify those that were to be notified, but this is a dishonest defence as the plaintiff showed the Succession Case number and the Gazette Notice no.2730 of 9th June 1989 which in law meant that the Notice was properly given.
I see the arguments in this case. There is no defence whatsoever to the claim. At this point the law is that if the defence raises any triable issue which should reasonably be tried the case should proceed to hearing. It does not have to be a defence that will succeed, except that it raises a triable issue. Here the defendant is alleging fraud on lack of notice which in fact was given, besides he has not even displaced the facts stated in the plaintiff`s affidavit.
I allow the application and strike off defence. I shall however set the counter claim for hearing now on a date to be agreed before application allowed with. Cost to the plaintiff.
Read this 21st June 2002 to the parties in open court.
A. I. HAYANGA
J U D G E
Hearing of counterclaim on 16th July 2002
Date taken before by consent of the parties.
A. I. HAYANGA
J U D G E