[2016] KEELC 929 (KLR)
The court found that despite the Defendant's failure to oppose the application, the defence on record raises triable issues, specifically concerning double allocation and alleged irregular acquisition of title. Summary judgement is only appropriate where there are no triable issues, and in this case, the existence...
Source-derived case information.
- Citation
- [2016] KEELC 929 (KLR)
- Parties
- Plaintiff: Michael Kitiyo; Defendant: Lucia Njoki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 95 of 2008
- Procedural Posture
- Land Case / Ruling on Application for Summary Judgement
- Outcome
- Application for summary judgement dismissed with costs to the Respondent.
- Judges
- EO Obaga
- Legal Topics
- Summary Judgement, Striking Out Defence, Ownership of Land, Double Allocation, Illegular Acquisition of Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Kitiyo
Plaintiff
Lucia Njoki
Defendant
Procedural Posture
Land Case / Ruling on Application for Summary Judgement
Legal Issues
- 1 Whether the defence filed by the Defendant should be struck out and summary judgement entered for the Plaintiff.
- 2 Whether the Defendant's defence raises triable issues that warrant a full hearing.
- 3 Whether the Plaintiff has established a clear case for summary judgement.
Ratio Decidendi
The court found that despite the Defendant's failure to oppose the application, the defence on record raises triable issues, specifically concerning double allocation and alleged irregular acquisition of title. Summary judgement is only appropriate where there are no triable issues, and in this case, the existence of such issues necessitates a full hearing. The court emphasized the importance of giving parties an opportunity to be heard, particularly in land matters, and concluded that the Plaintiff's application for summary judgement could not be allowed in the circumstances.
Court Disposition
Application for summary judgement dismissed with costs to the Respondent.
Orders
- The application for summary judgement is dismissed.
- Costs awarded to the Respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 95 OF 2008
MICHAEL KITIYO …..........................................PLAINTIFF
VERSUS
LUCIA NJOKI …........................................... DEFENDANT
R U L I N G
The Applicant Michael Kitiyo is the registered owner of LR No Kitale Municipality Block 3/975 and Kitale Municipality Block 3/976 (suitlands). The Applicant filed a Notice of Motion dated 10/2/2009 in which he seeks orders that the defence filed herein by the Defendant be struck out and that Summary Judgement be entered against the Defendant as prayed for in the Plaint.
The Defendant's Advocate was duly served with the Notice of Motion on 2/3/2009 but no grounds of opposition or replying affidavit was filed. This case remained dormant until January 2016 when the court issued Notice to parties to show cause why it should not be dismissed for want of prosecution. When the matter came up on 2/2/2016, the Plaintiff's advocate was able to explain the reason why the case had delayed. The court having been convinced with the reason for delay ordered that the current application be fixed for hearing and Hearing Notice be served.
Hearing Notice was served upon the Respondent in person as it was said that her Advocate George Wambura no longer practices as he has never taken out a practising certificate for sometime. The hearing of this application therefore proceeded ex-parte.
The Applicant contends that he is the registered owner of the suitlands. He annexed copies of Certificates of Lease and searches which show that he is the registered owner of the suitlands. He states in his affidavit that he operates a school on the suitlands and that the Respondent and her children are squatting on part of the suitlands. He contends that the Respondent has no interest on the suitlands and that her defence should be struck out and Judgement be entered against her as prayed for in the plaint.
I have given due consideration to the Applicant's application. Though the same was not opposed, I have looked at the defence on record. The defence raises certain issues which should be canvassed at the trial. The defence raises the issue of double allocation of the suitland. It also raises the issue of illegular acquisition of title.
Summary Judgement should only be given in the clearest of cases. It cannot be granted if there is a triable issue which is shown to exist. The affidavit of service shows that the Respondent received a Hearing Notice but indicated that she did not know how to read and that she was going to consult her lawyer. The lawyer she was referring to is the lawyer who received the application for summary Judgement but never filed any response. It is said that he no longer practices. The Respondent has triable issues only that she was let down by her lawyer.
This is a land matter and in as far as possible parties should be given an opportunity to be heard. I therefore find that the application for summary Judgement cannot be allowed in the circumstances. The same is hereby dismissed with costs to the Respondent.
It is so ordered.
Dated, signed and delivered at Kitale on this 18th day of April 2016.
E. OBAGA
JUDGE
In the presence of M/s Mufutu for Mr Kiarie for Plaintiff.
Court Assistant: Isabellah
E. OBAGA
JUDGE
18/4/16