[1996] KECA 168 (KLR)
The Court held that the appellant was precluded by the Civil Procedure Rules from raising the defence of illegality (lack of land control board consent) unless it was expressly pleaded in his defence. Since the issue was within the appellant's knowledge at the time of filing his defence, it did not constitute a new...
Source-derived case information.
- Citation
- [1996] KECA 168 (KLR)
- Parties
- Appellant: Zakayo N. Ngugi; Respondent: G.K. Kinuthia
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 157 of 1992
- Procedural Posture
- Civil Appeal / Appeal From Order Dismissing Application for Review in the High Court
- Outcome
- appeal dismissed with costs to the respondent
- Judges
- RO Kwach
- Legal Topics
- Pleading of Illegality, Specific Performance, Land Control Board Consent, Striking Out Defence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zakayo N. Ngugi
Appellant
G.K. Kinuthia
Respondent
Procedural Posture
Civil Appeal / Appeal From Order Dismissing Application for Review in the High Court
Legal Issues
- 1 Whether the appellant could raise the defence of lack of land control board consent without having pleaded it in his defence.
- 2 Whether the application for review under Order 44 was properly grounded on a new and important matter.
Ratio Decidendi
The Court held that the appellant was precluded by the Civil Procedure Rules from raising the defence of illegality (lack of land control board consent) unless it was expressly pleaded in his defence. Since the issue was within the appellant's knowledge at the time of filing his defence, it did not constitute a new and important matter justifying review under Order 44. The High Court was correct in dismissing the application for review, and the appeal lacked merit.
Court Disposition
appeal dismissed with costs to the respondent
Orders
- The appeal is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
28 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: KWACH, OMOLO & LAKHA, JJ.A.)
CIVIL APPEAL NO. 157 OF 1992
BETWEEN
ZAKAYO N. NGUGI ..................................... APPELLANT
AND
G.K. KINUTHIA ....................................... RESPONDENT
(Appeal from the Order of the High Court of Kenya at Nairobi (The Hon. Justice Tank) dated 31st October, 1991 in H.C.C.C. NO. 3483 OF 1990) ****************
JUDGMENT OF THE COURT
The respondent sued the appellant in the superior court seeking an order of specific performance of an agreement for sale of agricultural land to which no land control board consent was given as required by the provisions of section 6 of the Land Control Act.
The appellant filed a defence resisting the respondents claim but he did not plead lack of land control board consent. If the appellant was going to rely o illegality as a defence to the claim, he was obliged to plead it - See Order 6 rule 4 of the Civil Procedure Rules.
The respondent applied to strike out the defence under 0. 6 r. 13(1)(a) of the Civil Procedure Rules on the ground that it did not disclose any defence to the claim and this application was granted. The appellant did not appeal against that order. Instead, he applied for a review of the order under Order 44 arguing that the court had not taken into account the question of lack of law control board consent.
Tank, J. dismissed the application holding that the issue of lack of consent was in existence and within the knowledge of the appellant at the time of the filing of the suit and was not therefore a new and important matter within the meaning of Order 44. It is against that determination that the appellant has now appealed to this Court. On the evidence, there can be little doubt that the Judge came to the correct decision on the point. The appellant was precluded by the rules from raising the defence of illegality otherwise than by express pleading.
For these reasons, we think the appeal has no merit, and it is accordingly dismissed with costs to the respondent.
Dated and delivered at Nairobi this 25th day of June, 1996.
R.O. KWACH
...............................
JUDGE OF APPEAL
R.S.C. OMOLO
.............................
JUDGE OF APPEAL
A.A. LAKHA
...........................
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR