Aboli & another (Suing as administrators of the Estate of Rev Madar Evans Okanga Dondo (Deceased)) v Kiarie & another (Suing as administrators of the Estate of Kiarie Ng'ang'a (Deceased))
The bottom line
#Kenya's Environment and Land Court refused to strike out a defence to a land counterclaim, ruling such relief needs full trial evidence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a counterclaim amounts to a suit
- 2.Whether the defence to counterclaim should be struck out
- 3.Whether the prayers sought in the application can be granted in the circumstances
Key legal issues
#Whether the plaintiffs' defence to the counterclaim should be struck out as frivolous, vexatious or an abuse of process
The application to strike out fails; the defence raises matters that should be heard on merit
The court applied the settled principle that striking out is a discretionary remedy to be exercised with great care and caution, so that no litigant, however weak their case, is driven from the seat of justice. The defendants' grounds merely reasserted the counterclaim averments, which the plaintiffs partly admitted and partly denied, so triable issues remained and judgment could not be entered without proof.
Whether judgment on the counterclaim (vacant possession and mesne profits) could be entered at the interlocutory stage
No; the prayers require proof to the required civil standards upon evidence at trial
The court held that relief such as vacant possession and mesne profits cannot be granted on a striking-out application because they must be established by evidence. The court can only pronounce itself after considering evidence placed before it at the hearing of the counterclaim.
Legal principles established
#- The jurisdiction to strike out pleadings is discretionary and must be exercised sparingly; a party is entitled to have its case tried unless the claim is bound to fail or is an abuse of process
- Prayers in a striking-out application that require proof cannot be granted without evidence
Court orders
#- 1.The application dated March 15, 2016 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 51 rule 1, Order 2 rule 15 of the Civil Procedure Rules and sections 1A, 1B & 3A of the Civil Procedure Act
Relief refused
#Striking out of the plaintiffs' defence to the counterclaim and entry of judgment for vacant possession and mesne profits
Defendants laid no basis for striking out; prayers require proof at trial
Costs
Application dismissed with costs to the plaintiffs
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.
A plainti (defendant) is entitled to pursue a claim in our courts however implausible and however improbable his chances of success.
the power to strike out a pleading is a discretionary one. It is to be exercised with the greatest care and caution.
In conclusion, the application dated March 15, 2016 lacks merit and is dismissed with costs.
Issues in the judgment
#Replying affidavit referenced by defendants is not on the court record
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aboli & another (Suing as administrators of the Estate of Rev Madar Evans Okanga Dondo (Deceased)) v Kiarie & another (Suing as administrators of the Estate of Kiarie Ng'ang'a (Deceased))", Case Analysis (2023). Environment and Land Case Civil Suit 108 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16716/eng@2023-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.