[2009] KEHC 1079 (KLR)
The court found that although the defence was not served within the mandatory seven-day period as required by Order 8 rule 1(2) of the Civil Procedure Rules, the defence was nonetheless filed within the requisite time. The court held that the delay in service was a curable defect and did not warrant the striking out...
Source-derived case information.
- Citation
- [2009] KEHC 1079 (KLR)
- Parties
- Plaintiff: Plaintiff; Defendant: Defendant
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 33 of 2009
- Procedural Posture
- Miscellaneous Application / Application to Strike Out Defence
- Outcome
- application dismissed
- Legal Topics
- Land Fraud, Subdivision of Land, Eviction Proceedings, Striking Out Defence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Plaintiff
Plaintiff
Defendant
Defendant
Procedural Posture
Miscellaneous Application / Application to Strike Out Defence
Legal Issues
- 1 Whether the defence should be struck out for failure to serve within the requisite seven days as required by Order 8 rule 1(2) of the Civil Procedure Rules.
- 2 Whether the delay in serving the defence is curable or fatal to the defendant's case.
- 3 Whether the remedy for the plaintiff lies in costs or in striking out the defence.
Ratio Decidendi
The court found that although the defence was not served within the mandatory seven-day period as required by Order 8 rule 1(2) of the Civil Procedure Rules, the defence was nonetheless filed within the requisite time. The court held that the delay in service was a curable defect and did not warrant the striking out of the defence. The appropriate remedy for the plaintiff was an award of costs rather than the drastic measure of striking out the defence. The application to strike out the defence was therefore dismissed, and the status quo was to be maintained, with the defendant allowed to occupy the land but not to dispose of or interfere with its registration.
Court Disposition
application dismissed
Orders
- The application to strike out the defence is dismissed.
- The remedy to the plaintiff is in costs.
Full Case Text
Judgment text and source record
26 paragraphs
1. Land Law
2. Civil Practice and Procedure
i. Defence be struck out.
ii. Order VII r 1(2)
Order VI r 13 1(C) cpr
Section 3A
3. Subject of main suit
Land
i) Original LR – Kericho/Kipsonoi S.S/55
Later sub divided Kericho/Kipsonoi S.S/634
ii) Issue – sub-division allegedly done by fraud
iii) Eviction sought of defendant
iv) Defendant entered appearance but delayed in filing defence
v) Application 5. 5.09 for injunction compromised by both parties status quo be maintained.
vi) Status quo
Defendant to occupy land but not dispose of the same nor interfere with the registration.
4. Application 2nd July, 2009
Defence filed but not served within the requisite seven days.
Order 8 r 1(2) cpr which is mandatory
In reply – it is curable
5. Held – Application dismissed as defence filed within
requisite time. Remedy in costs to respondent
6. Case Law
7. Advocate
J.K. Kiplenge advocate instructed by M/S Kiplenge & Kurgat & Co. advocates for the Plaintiff/Applicant – present
J.M. Motanya advocate instructed by M/S Motanya & Co. advocates for the Defendant/Respondent - present