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ELCDismissedNotice of motion dated 26th April 2012, amended 1st July 2016 (suit number not stated in the judgment)· [2016] KEELC 65 (KLR)

Mary Owino Omondi v Jamasawa Samuel Chiaja & 2 others [2016] KEELC 65 (KLR)

Environment and Land Court
14 December 2016
1,099 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, administrator of the estate of Paul Omondi Suji (who died on 12th November 1983 owning land parcel South Gem/Rera/546), moved the court by notice of motion dated 26th April 2012 and amended on 1st July 2016 seeking striking out of the defences filed by the 1st Defendant (Jamasawa Samuel Chiaji) and the 2nd and 3rd Defendants (Attorney General and Land Registrar Siaya), entry of judgment, and a preliminary decree on prayers (a) to (c) with formal proof on prayer (d). She alleged that the land was transmitted on 19th February 1999 to one Jeckonia Aduol without a confirmed grant and immediately transferred to the 1st Defendant, and that the transmission was illegal, reckless, negligent, collusive and fraudulent, noting that the Registrar could not trace the succession documents. The 2nd and 3rd Defendants filed grounds of opposition asserting a good defence and no admission of fraud, while the 1st Defendant filed no replying papers to the motion though he had pleaded innocent purchase for value. The court framed three issues: whether the defences raise triable issues, whether judgment and a preliminary decree should issue, and costs. Holding that both the 1st Defendant's defence (pleading innocent purchase for value) and the amended defence of the 2nd and 3rd Defendants (denying fraud and asserting lawfulness) raise triable issues best settled through evidence, the court dismissed the application as without merit and awarded costs to the 2nd and 3rd Defendants.

Key legal issues

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01

Whether the statements of defence raise triable issues warranting striking out and entry of judgment

Holding

Both defences raise triable issues; the application to strike out was dismissed

Reasoning

The 1st Defendant denied fraud and pleaded innocent purchase for value, while the 2nd and 3rd Defendants averred their actions were lawful and procedural. The court held these denials join issue with the plaintiff's claim of fraudulent transmission of the suit land and can only be resolved by vivaudo evidence at a full hearing, not on affidavit evidence at an interlocutory stage.

p. 3
02

Effect of non-filing of a response to the notice of motion by the 1st Defendant

Holding

Non-compliance with Order 51 Rule 14 did not preclude reliance on the filed defence

Reasoning

Although the 1st Defendant filed no replying affidavit to the motion as required, the court considered his pleadings, which raised triable issues. The court proceeded to consider the application on the papers and submissions, consistent with the overriding objective of deciding matters on merit rather than technicalities.

p. 3
03

Whether the entries on the register of South Gem/Rera/546 were fraudulent or irregular

Holding

Not determined at this stage; a triable issue

Reasoning

The plaintiff alleged that transmission of the deceased's land without a confirmed grant was illegal and done fraudulently or negligently, noting the Registrar could not trace the succession documents. The court found the claim essentially sought nullification and rectification, but the denials of fraud by the defendants required evidence and could not be resolved on the motion.

p. 2

Legal principles established

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  • A defence that raises triable issues, such as a plea of innocent purchaser for value, should not be struck out; such issues are best settled through evidence at trial
  • Failure by a defendant to file a response to a notice of motion does not automatically warrant striking out a filed statement of defence that raises triable issues

Court orders

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  1. 1.The notice of motion dated 26th April 2012 and amended on 1st July 2016 is dismissed
  2. 2.Costs of the application awarded to the 2nd and 3rd Defendants
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcel South Gem/Rera/546; no specific constitutional/statistical provision invoked

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mary Owino Omondi v Jamasawa Samuel Chiaja & 2 others [2016] KEELC 65 (KLR)", Case Analysis (2016). Notice of motion dated 26th April 2012, amended 1st July 2016 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/65/eng@2016-12-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.