Khadijah Ali Omar & Ahmed Omar (suing as administrators and beneficiaries of the Estate of Omar Khamis (Deceased) v Kaushumu Wambui [2017] KEELC 2159 (KLR)
The bottom line
#A Kenyan landowner's shortcut to evicting an occupant failed because summary judgment only works for plain, obvious cases with no real defence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff's claim falls within the category of suits for which summary judgment may be entered under Order 36 Rule 1(b)
- 2.Whether the application was properly brought given that the Defendant had not yet filed a Defence when the application was filed
- 3.Whether the Defendant's Defence and Counterclaim raise triable issues warranting a full trial
Key legal issues
#Applicability of Order 36 Rule 1(b) summary procedure to a claim for vacant possession against a person in long occupation claiming through a woman-to-woman marriage
The claim does not fall within the categories in Order 36(1)(b); the Defendant's term as tenant had not expired nor been determined by notice to quit or forfeited
Order 36(1)(b) applies to suits for recovery of land against tenants whose term has expired, been determined by notice to quit, been forfeited for non-payment of rent or breach of covenant, persons claiming under such tenants, or trespassers. The Defendant claimed occupation since 1972 through marriage to the original owner, so her occupation was neither that of a tenant with an expired term nor plainly a trespasser. The Plaintiff's claim was an unliquidated claim not qualifying for the summary procedure.
Prematurity of the application filed before the period for filing Defence lapsed
The application filed on 14th June 2016, before the Defence filing period expired on 17th June 2016, could not be sustained as one against a defendant who appeared but failed to file a Defence
Order 36 Rule 1(b) contemplates an application where the Defendant has appeared but not filed a Defence. The Defendant entered appearance on 3rd June 2016 and had until 17th June 2016 to file a Defence under Order 7 Rule 1. The application was filed on 14th June 2016, prematurely. The Defendant subsequently filed her Defence and Counterclaim on 22nd June 2016, four days late, which the court nonetheless considered.
Whether a Defence filed late/irregularly may be ignored in a summary judgment application
No - once a Defence and Counterclaim are on record, the court must consider them if they disclose substantial grounds of defence
Relying on Mugambi v Gatururu and Rajinder Nath Ohiri v Pleetah Singh, the court held that a Defence on record cannot be ignored even if irregularly filed. The Defendant's Defence and Counterclaim, claiming occupation since 1972 and raising issues beyond the marriage question settled in Succession Cause No.1512 of 2006, raised triable issues requiring oral evidence. She was therefore entitled to be heard on the merits rather than be shut out by summary procedure.
Legal principles established
#- The discretion to enter summary judgment must be exercised judicially and with the greatest care
- Where a Defence has been filed, the court cannot ignore it in an application for summary judgment, even if irregularly filed
- Summary judgment is a drastic remedy reserved for plain and obvious cases; a defendant with a stateable and arguable defence must be heard
Court orders
#- 1.The Plaintiff/Applicant's Notice of Motion dated 10th June 2016 is dismissed entirely
- 2.Costs of the application to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 36 Rule 1(b) of the Civil Procedure Rules and Sections 24, 25 and 26 of the Land Registration Act
Relief refused
#Summary judgment for the Plaintiff against the Defendant as prayed in the Plaint
The claim is not a liquidated demand or one of the cases contemplated by Order 36(1)(b), and the Defence and Counterclaim raise triable issues
Order for vacant possession of LR No.4953/933 IR 33891, LR No.4953/202 IR 33948 and LR No.4953/931 IR 33886
Summary procedure inapplicable; Defendant's occupation claim and Defence require oral hearing
Costs
Dismissed entirely with costs being in the cause
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.
Consequently the Court finds that the Plaintiff/Applicant’s Notice of Motion dated 10th June 2016, is not merited. The same is dismissed entirely with costs being in the cause. It is so ordered.
The Plaintiff’s claim therefore does not fall under the category of suits where summary judgement may be applied for. The Plaintiff’s claim is unliquidated claim and therefore does not qualify for summary procedure under Order 36(1)(b).
The granting of summary judgement is a drastic remedy and should be applied in plain and obvious cases where it can be discovered that the Defendant is bent on delay or some form of mischief but where a Defendant has a stateable and arguable Defence, he must be given an opportunity to state it and argue it before the Court
Further, the Defendant has raised a Defence and Counterclaim which raises some triable issues and she should not be shoved out of the seat of justice in a drastic remedy of summary procedure.
Issues in the judgment
#The judgment does not state the full names of the Defendant or the case number, and refers to the Plaintiff inconsistently in singular and plural ('the Plaintiff/Applicants', 'the Applicant have attached Grant')
Gender inconsistency in referring to the Defendant: 'the Defendant filed his Memorandum of Appearance' where elsewhere the Defendant is female ('her Defence and Counter-claim', 'she has been in possession')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khadijah Ali Omar & Ahmed Omar (suing as administrators and beneficiaries of the Estate of Omar Khamis (Deceased) v Kaushumu Wambui [2017] KEELC 2159 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2159/eng@2017-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.