[2007] KEHC 3648 (KLR)
The court held that the application to strike out the plaintiff's suit on grounds of res judicata must fail because the defendants did not plead res judicata in their defence, which is a mandatory requirement. The court further held that the appropriate remedy for failure to serve an amended defence is to order...
Source-derived case information.
- Citation
- [2007] KEHC 3648 (KLR)
- Parties
- Plaintiff: Samuel Thachi Wangi; Defendant: Alex Rigaga & Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 340 of 2003
- Procedural Posture
- Civil Case / Ruling on Interlocutory Applications
- Outcome
- Both applications dismissed; suit and defence to proceed to trial.
- Legal Topics
- Trespass to Land, Res Judicata, Striking Out Pleadings, Service of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Thachi Wangi
Plaintiff
Alex Rigaga & Others
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Applications
Legal Issues
- 1 Whether the plaintiff's suit is res judicata and should be struck out.
- 2 Whether the amended defence and counterclaim should be struck out for lack of service on the plaintiff.
- 3 Whether the parties should be allowed to proceed to trial on the merits of the case.
Ratio Decidendi
The court held that the application to strike out the plaintiff's suit on grounds of res judicata must fail because the defendants did not plead res judicata in their defence, which is a mandatory requirement. The court further held that the appropriate remedy for failure to serve an amended defence is to order service within a specified period, not to strike out the defence immediately. Both applications were dismissed: the application to strike out the plaint for res judicata was dismissed with costs to the plaintiff, and the application to strike out the amended defence for lack of service was dismissed with no order as to costs, but the defendants were ordered to serve the amended...
Court Disposition
Both applications dismissed; suit and defence to proceed to trial.
Orders
- Application to strike out plaint as res judicata dismissed with costs to plaintiff.
- Application to strike out amended defence for lack of service dismissed with no order as to costs.
Full Case Text
Judgment text and source record
52 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 340 of 2003
SAMUEL THACHI WANGI …………………..………. PLAINTIFF
VERSUS
ALEX RIGAGA & OTHERS ………………………. DEFENDANT
1. Civil Practice and Procedure
2. Land and Environment Law Division
3. Subject of main suit
I: TRESSPASS
i) The court (Kuloba,J) allowed a Judical Review quashing orders of a land dispute tribunal at Kiambu No. LND16/20/86/2000 in Misc. H.No.474/01
ii) The plaintiffs filed land case matter to evict the defendants.
4. Subject of application.
A Application 12. 1.006
Filed by 1 and 2 defendants
To strike out plaintiffs suit being res-judicata
B: Application 15 August 2000
To strike out defendant 1 and 2 amended statement of defence and counter claim
Having not been served upon the plaintiffs as required by law
C: Application 18. 5.06 by plaintiff
D: Application for injunction dismissed Osiemo J 5. 7.06
5. Orders of court: Aluoch J – two application be heard together
6. Inter parties hearing Ang’awa J 27. 2.07
7. Held;
The suit and the defence to remain. Parties to proceed to trial where the said issues should be heard. Amended defence be served on the plaintiffs reply to be made within 14 days of service.
8. Case law – Nil
9. Advocates:
G.S.Lange for Macharia Kenneth & Associates Advocates for the plaintiff/applicant
A.M. Macharia for Kihara Muttu & Co. Advocates for the 1st and 2nd defendant/respondent
Wachira Mburu & Co. Advocates for the 3rd and 4th defendant
RULING
1: BACKGROUND
1. The main suit concerns land. The parties had been heard in the Land dispute tribunal at Kiambu Ref. No. LND16/20/86 of 2000. Any decision taken in that tribunal was challenged by the plaintiffs/applicant who then filed Misc. Hccc No.474/01 for a Judicial Review. Kuloba J allowed the judical review and all the proceedings were quashed.
2. The plaintiff/applicant filed this present suit seeking for orders that defendants are trespassers upon the suit land being LR Kiambaa/Kihara/427.
3. The defendants filed their defence, later amended but failed to serve the same upon the plaintiffs. The plaintiff filed application of 15 August 2005 seeking that the amended defence be struck out and judgment entered in favour of the plaintiff. The defendants counteracted this and filed application 12. 1.06 seeking for the plaint to be strike out on grounds that the suit was res judicata (not pleaded in the defence)
4. On 23. 2.06 Aluoch J consolidated the two application for hearing.
II Application consolidated
12. 1.06 and 15. 8.05.
5. The application for striking out the plaint dated 12. 1.06 did not plead in its defence that the suit before court was res judicata. The party who relies on a preliminary objection or striking out would normally have pleaded such law in his defence or plaint. The defendants did not do so. The application of 12 January 2006 is hereby dismissed with costs to the respondent.
6. The application of 15. 8.05 seeking the striking out of amended defence on ground that it has not been served on the plaintiff by the defendant would have first taken the form of requesting the court formally for orders that the plaintiff be served with a given time frame, failure to, be served the party be at liberty to apply and seek the striking out of the defence for non-compliance of the court orders.
7. The court makes orders that the defendants files and serve the amended defence upon the plaintiff within 14 days. To this extent the application is refused with no orders as to costs.
8. The parties to proceed to pre trial and thereafter set this suit for hearing.
In summary
9. Application to strike out plaint being res judicata is hereby dismissed (dated 12. 1.06) with costs to plaintiff/respondent.
10. Application to strike out amended defence for lack of service is hereby dismissed with no orders to cost. Amended defence be served within 14 days.
Dated this 28th day of February 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
G.S. Lange for Macharia Kenneth & Associates Advocates for the plaintiff/applicant
A.M. Macharia for Kihara Muttu & Co. Advocates for the 1st and 2nd defendant/respondent
Wachira Mburu & Co. Advocates for the 3rd and 4th defendants