[2013] KEHC 2594 (KLR)
The court found that the 3rd party, Samuel Kiptui Ngeywa, had no direct claim against either the plaintiff or the defendant, as his alleged purchase was from a third party not joined in the suit. The defendant had expressly admitted the plaintiff's claim both in writing and by affidavit, and the 3rd party's defence...
Source-derived case information.
- Citation
- [2013] KEHC 2594 (KLR)
- Parties
- Plaintiff: Matayo Ndila Cheptrot; Defendant: Phillip Lochok; Respondent: Samuel Kiptui Ngeywa
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 96 of 1999
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion to Strike Out 3rd Party Defence and Enter Judgment on Admission
- Outcome
- Application allowed. 3rd party's defence struck out. Judgment entered for plaintiff on admission. Mandatory injunction granted for removal of 3rd party from land. Costs to plaintiff.
- Judges
- EO Obaga
- Legal Topics
- Striking Out Defence, Judgment on Admission, Land Ownership Dispute, Mandatory Injunction, Eviction, Land Control Board Consent
- 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
Matayo Ndila Cheptrot
Plaintiff
Phillip Lochok
Defendant
Samuel Kiptui Ngeywa
Respondent
Procedural Posture
Civil Suit / Ruling on Notice of Motion to Strike Out 3rd Party Defence and Enter Judgment on Admission
Legal Issues
- 1 Whether the 3rd party's defence should be struck out as having no basis against the plaintiff.
- 2 Whether judgment should be entered in favour of the plaintiff on the defendant's admission.
- 3 Whether the 3rd party is entitled to remain in possession of the suit land.
Ratio Decidendi
The court found that the 3rd party, Samuel Kiptui Ngeywa, had no direct claim against either the plaintiff or the defendant, as his alleged purchase was from a third party not joined in the suit. The defendant had expressly admitted the plaintiff's claim both in writing and by affidavit, and the 3rd party's defence raised issues that only the defendant could have raised, but which the defendant had already waived by admission. The court held that the 3rd party's defence was baseless and that his continued occupation of the land was without legal justification. Consequently, the court struck out the 3rd party's defence, entered judgment for the plaintiff on admission, and ordered the 3rd...
Court Disposition
Application allowed. 3rd party's defence struck out. Judgment entered for plaintiff on admission. Mandatory injunction granted for removal of 3rd party from land. Costs to plaintiff.
Orders
- The 3rd party's defence is struck out.
- Judgment is entered in favour of the plaintiff on the defendant's admission.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CIVIL SUIT NO. 96 OF 1999
MATAYO NDILA CHEPTROT .......................................................…...PLAINTIFF
VERSUS
PHILLIP LOCHOK .......................................................................... DEFENDANT
R U L I N G
The Applicant Matayo Ndila Cheprot filed a Notice of Motion dated 20/07/2012 seeking the following prayers:-
That the defence dated 12/10/2004 filed by one Samuel Kiptui Ngeywa otherwise referred to as the “3rd Party” be struck out.
That judgment be and is entered on the Defendant's admission dated 06/10/2003.
That by way of a mandatory injunction the said Samuel Kiptui Ngeywa, his family, servants and/or any other person claiming interest through him do remove themselves from Plot 5 Kitalale Scheme measuring 2 ½ acres.
That costs be provided for.
The Applicant contends that he filed a suit against the Defendant Philip Lochok. The Defendant entered appearance but failed to file defence. On 26/11/1999 the Applicant obtained interlocutory judgment against the Defendant. On 14/11/20003, the Defendant admitted the Plaintiff's claim. The Plaintiff/Applicant prays for striking out of the 3rd party's defence and entry of judgment in his favour on admission. The 3rd party opposed the application based on Replying Affidavit filed in Court on 10/05/2013. In the Affidavit, the 3rd party contends that the suit herein had been dismissed on 26/05/2011 and that as far as he is concerned, the Defendant was never served with summons to enter appearance and that the admission dated 06/10/2013 is a forgery. The 3rd party contends that he bought the suit land from one Patrick Moikut who had purchased it from the Defendant. He contends that he has a good case and as such his defence should not be struck out.
I have considered the Applicant's application as well as the response to the same by the 3rd party. Contrary to the 3rd party's allegation that this suit was dismissed on 26/05/2011, the order for dismissal of the suit was set aside following an application for review vide a ruling of 12/07/2012. The 3rd party's contention that the Defendant herein was not served with summons to enter appearance is without basis. The Defendant was served with summons to enter appearance and he entered appearance on 10/11/1999 through the firm of Atuti Bwonyari & Co. Advocates. The Defendant subsequently admitted the Plaintiff's claim against him in writing on 06/10/2003. The Defendant again reiterated his admission in his Affidavit of 13/06/2013. The 3rd party has no direct claim against the Defendant. The 3rd party contends that he bought the suit land from one Patrick Moikut who had bought the same from the Defendant. The Plaintiff has countered this contention through a Further Affidavit in which he contends that indeed there was an intention on the part of the Defendant to sell the land to the said Patrick Moikut but which sale did not go through. The Applicant annexed a copy of a letter from the Area Chief confirming the position. The 3rd party did not deny these facts.
The Defendant has expressly admitted the Plaintiff's claim. The 3rd party has no claim against the Plaintiff. The 3rd party has no direct claim against the Defendant. It is not the Defendant who allegedly sold the land to the 3rd party. The 3rd party's claim is against Patrick Moikut who is not a party to this suit. I have looked at the 3rd party's defence in which he inter-alia contends that the sale between Plaintiff and the Defendant had no blessings of the Land Control Board. The 3rd party has no business to raise the issue of consent of the Land Control Board. It is the Defendant who should have raised this concern but he has already admitted the Plaintiff's claim against him. I find that the 3rd party's defence has no basis as far as the Plaintiff's case is concerned. The correspondence the third party has annexed to his Replying Affidavit only shows that he is the one in possession of the land. The Plaintiff's contention is that the occupancy of the land by the 3rd party is illegal as the land belongs to him. I proceed to strike out the 3rd party's defence and enter judgment in favour of the Plaintiff on the basis of admission. The 3rd party has no basis upon which he should continue remaining on the Plaintiff's land. He should voluntarily move out failing which, the Plaintiff shall be at liberty to have him evicted. The Plaintiff/Applicant shall have costs of the application.
It is so ordered.
Dated, signed and delivered in Open Court on this 11th day of July, 2013.
E. OBAGA
JUDGE
In the absence of parties who were aware of date of ruling. Court Clerk: Joan.
E. OBAGA
JUDGE
11/07/2013