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ELCDismissed

Sylvia Metian Lantei v Dorcas Naipei Ntore & 2 others [2019] KEELC 3155 (KLR)

Environment and Land Court
27 May 2019
COChristine Ochieng
1,096 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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This was a ruling on the 2nd Defendant's application dated 29th October 2018, brought under Order 2 rule 15 and Order 51 rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking to strike out the 1st Defendant's Statement of Defence dated 10th April 2018. The 2nd Defendant argued the Defence disclosed no reasonable defence, was an abuse of process, frivolous, vexatious and scandalous - particularly the allegation that the 1st Defendant had been the 2nd Defendant's lover - lacked specificity, and exposed collusion with the Plaintiff. The 1st Defendant opposed via Grounds of Opposition, asserting her Defence raised triable issues; the Plaintiff and 3rd and 4th Defendants filed no response. The court framed a single issue: whether the Defence should be struck out. Applying Order 2 rule 15 and the Court of Appeal's guidance in Ramji Megji Gudka Ltd v Alfred Morfat Omundi Michira (citing DT Dobie v Muchina) that striking-out powers must be exercised sparingly and only in the clearest of cases, and Patel v EA Cargo Handling Services Ltd on the meaning of a triable issue, the court found the 1st Defendant's Defence explained her participation in the transactions over the suit land and raised triable issues requiring full trial. The application was disallowed, parties were directed to comply with Order 11 and set the suit down for hearing, with costs in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the 1st Defendant's statement of Defence dated the 10th April, 2018 should be struck out

Key legal issues

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01

Whether the 1st Defendant's Statement of Defence should be struck out under Order 2 rule 15

Holding

The application was disallowed because the Defence raises triable issues warranting full trial

Reasoning

The court applied the principle from Ramji Megji Gudka Ltd v Alfred Morfat Omundi Michira (citing DT Dobie v Muchina) that striking-out powers must be exercised sparingly and only in the clearest of cases, and Patel v EA Cargo Handling that a defence raising a prima facie triable issue should go to trial. The 1st Defendant's Defence explained her participation in transactions over the suit land, raising triable issues despite the 2nd Defendant's allegations of collusion, scandal and lack of specificity.

p. 2

Legal principles established

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  • The power to strike out pleadings must be sparingly exercised and only in the clearest of cases; even one triable issue suffices to save a defence
  • A defence on merits means one raising a triable issue, not a defence that must succeed

Court orders

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  1. 1.The 2nd Defendant's Application dated 29th October, 2018 to strike out the 1st Defendant's Statement of Defence is disallowed
  2. 2.All parties to comply with Order 11 and set the suit down for hearing
  3. 3.Costs in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

CO
majority

Wrote the judgment

Jurisdiction invoked
Order 2 rule 15 and Order 51 rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act

Relief refused

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Striking out the 1st Defendant's Defence dated 10th April 2018 in its entirety

The Defence raises triable issues that should proceed to full trial; striking out is exercised sparingly only in clearest of cases

p. 2

Costs

Costs will be in the cause

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the power to strike out pleadings must be sparingly exercised. It can only be exercised in clearest of cases.
p. 2striking out pleadings - sparing exercise
In dealing with the issue of triable issues, we must point out that even one triable issue would be sufficient.
p. 2triable issues
a triable issue" that is an issue which raises a prima facie defence and which should go to trial for adjudication
p. 2defence on merits
I will disallow the 2nd Defendant's Application dated the 29th October, 2018 to strike out the 1st Defendant's Statement of Defence and direct that all the parties do comply with Order 11 and set the suit down for hearing.
p. 2final orders

Issues in the judgment

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minor

Patel v EA Cargo Handling Services cited with conflicting years/citations: '(1975) EA 75' in the 2nd Defendant's list and '(1974) EA 75' in the court's quotation

minor

The names of the parties and the suit's case number are not stated in the judgment; parties are referred to only by role

minor

Parties referred to inconsistently: application filed by 'the 2nd Defendant' but text elsewhere uses 'Plaintiffs' plural and 'He'/'She' pronouns shifting between parties

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, "Sylvia Metian Lantei v Dorcas Naipei Ntore & 2 others [2019] KEELC 3155 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3155/eng@2019-05-27

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