WAHOME KIRENGO v JOSPHAT WAMBUGU [1998] KECA 28 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a landowner's appeal because his suit was wrongly filed in the High Court without a formal transfer order.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether issues of limitation, absence of land control board consent and the manner of commencement of the suit could be raised where not specifically pleaded
- 2.Whether the amended plaint filed directly in the High Court, while the suit was pending in the Principal Magistrate's Court, was properly struck out
- 3.Whether an adverse possession claim commenced by plaint rather than Originating Summons under Order 36 rule 3D of the Civil Procedure Rules was maintainable
Key legal issues
#Whether unpleaded issues could ground the striking out of the plaint
The issues of limitation, absence of land control board consent and the manner of commencement in the High Court were improperly allowed to be canvassed because the respondent had not specifically pleaded them, though the irregularities were curable under section 79A of the Civil Procedure Act.
By dint of Order 6 rule 4(1) and (2) of the Civil Procedure Rules, a party must plead the matters on which they rely. The trial judge upheld the preliminary objection on all four grounds, but three of those grounds were not specifically pleaded in the defence. The court therefore disapproved reliance on them, while still upholding the striking out on the pleaded ground of improper commencement in the High Court.
Whether the amended plaint was properly filed in the High Court
The amended plaint was properly struck out because the suit was commenced in the High Court in contravention of Order 4 rule 1 of the Civil Procedure Rules, and there was no order transferring the suit from the Principal Magistrate's Court under section 18 of the Civil Procedure Act.
The suit originated in the Principal Magistrate's Court at Meru and was still pending there. The appellant filed his amended plaint directly in the High Court at Meru, where it was assigned a new number, without any transfer order. This ground was specifically pleaded in the defence, and the contravention of Order 4 rule 1 justified striking out the amended plaint notwithstanding curable irregularities.
Legal principles established
#- Issues such as limitation, absence of land control board consent and the manner of commencement of a suit cannot be canvassed where they have not been specifically pleaded
- An amended plaint cannot properly be filed in the High Court where the suit is pending in the Principal Magistrate's Court unless there is an order transferring the suit under section 18 of the Civil Procedure Act
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru
- H.C.C.C. No. 255 of 1989
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (Civil Appeal 298 of 1996); no specific constitutional or statutory provision is cited in the judgment
Relief refused
#The appellant's appeal against the striking out of his amended plaint
The suit was commenced in the High Court in contravention of Order 4 rule 1 of the Civil Procedure Rules and there was no order transferring it from the Principal Magistrate's Court under section 18 of the Civil Procedure Act
Costs
The appeal is dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
By dint of the provisions of Order 6 rule 4 (1) and (2) of the Civil procedure Rules, the issue of limitation, absence of land control board consent and the manner in which the suit was commenced in the High Court , were in our view improperly allowed to be canvassed the respondent having not specifically pleaded them
notwithstanding the irregularities we have pointed out, which in any event are curable under section 79A of the Civil procedure Act, we think that the appellant’s amended plaint was properly struck out
we have gone through the record and find no order transferring the suit in question from the Principal Magistrate’s Court to the High Court in terms of section 18 of the Civil Procedure Act
For the foregoing reasons, and notwithstanding our sympathy to the appellant in the predicament he finds himself in, the appeal has clearly to merit. It is dismissed with costs to the respondent.
Issues in the judgment
#The judgment states 'the appeal has clearly to merit' where 'clearly lacks merit' appears to be intended, given that the appeal is dismissed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "WAHOME KIRENGO v JOSPHAT WAMBUGU [1998] KECA 28 (KLR)", Case Analysis (1998). Civil Appeal 298 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/28/eng@1998-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.