Mary Wambui Gaitho & 203 others v Utheri wa Lari Company Limited & 11 others [2020] KEELC 2268 (KLR)
The bottom line
#A Kenyan court refused to strike out a land counterclaim over a missing document, ruling that procedure should not defeat justice.
What this practically means
#Executive summary
#Key legal issues
#Whether a counterclaim for adverse possession brought by plaint/defence rather than originating summons, without an annexed certified extract of title, offends Order 37 rule 7(2) of the Civil Procedure Rules
The counterclaim did bring the claim within Order 37 rule 7(2) and did not annex a certified extract of title, but the defect was cured by the certified extract annexed to the defendants' replying affidavit, which the court took into account in the interests of substantive justice
The court found that prayer 1 of the counterclaim, being a claim for adverse possession, attracted Order 37 rule 7(2), and that the rule had not been complied with in the counterclaim itself. However, the defendants annexed a certified extract of title to their replying affidavit. Guided by Article 159(2)(d), Sections 1A and 1B of the Civil Procedure Act and Section 3 of the Environment and Land Court Act, the court took note of that document, holding that procedural rules should not undermine the cause of justice. Pre-trial directions under Order 11 and the spirit of Order 37 rule 18 would allow adjustments before trial.
The nature and limits of preliminary objections
A preliminary objection must rest on assumed pleaded facts and cannot depend on ascertainment of facts; normally it cannot be opposed by replying affidavit, but the court may relax that rule to do substantive justice
Relying on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, the court restated that a preliminary objection proceeds on the assumption that the opposing party's pleaded facts are correct and cannot be raised where facts must be ascertained. It acknowledged the corollary that a replying affidavit is not the proper response, but held that constitutional and statutory commands on substantive justice justified departing from that general rule in this case while preserving the rule for appropriate future cases.
Legal principles established
#- A preliminary objection is argued on the assumption that all facts pleaded by the other side are correct and cannot be raised if any fact has to be ascertained
- A court may depart from the general rule that a replying affidavit cannot oppose a preliminary objection, in furtherance of substantive justice under Article 159(2)(d), though the general rule remains for appropriate cases
Court orders
#- 1.The preliminary objection dated 17th July 2019 is dismissed
- 2.Costs in the cause
- Jurisdiction invoked
- Environment and Land Court Act, 2011 (Section 3); Article 159(2)(d) of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Wambui Gaitho & 203 others v Utheri wa Lari Company Limited & 11 others [2020] KEELC 2268 (KLR)", Case Analysis (2020). Not stated in extract (plaint filed 9th March 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2268/eng@2020-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.