Mwenesi v Bunyali & 7 others
The bottom line
#A Kenyan court refused to strike out land dispute defences, ruling that even one genuine triable issue means the case must go to a full hearing.
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 defences filed herein are a sham and raise no triable issue
Key legal issues
#Whether the defences filed are a sham raising no triable issue and should be struck out under Order 2 Rule 15 and Order 36(1)(b)
The application was dismissed; the defences raise bona fide triable issues including limitation, bona fide purchaser for value, adverse possession and the root of title, and striking out would be unfair.
The court applied the settled principles that striking out is a drastic, sparingly exercised remedy. The defences contained specific denials and triable defences explaining the root of title and wishing away fraud allegations. Whether title was lawfully obtained required a full hearing. The application was also an afterthought, filed after the plaintiff had called two witnesses.
Whether a counterclaim can survive striking out of a defence
A counterclaim cannot stand on its own; it is conjoined to the defence under Order 8 Rule 7 of the Civil Procedure Rules, so the plaintiff's argument that counterclaims would remain after striking out defences was rejected.
The plaintiff had argued that the defendants' counterclaims for reimbursement would remain for trial even if the defences were struck out, so no prejudice would be suffered. The court held this position untenable because a counterclaim is conjoined to the defence under Order 8 Rule 7, meaning striking out the defences would also imperil the counterclaims.
Legal principles established
#- The power to strike out pleadings is a drastic step that should be used sparingly and only where the pleading is clearly untenable
- If a defence raises even one bona fide triable issue, the defendant must be given leave to defend
- A counterclaim cannot stand on its own as it is conjoined to a defence
Court orders
#- 1.The Notice of Motion dated March 17, 2023 seeking striking out of the defences and entry of judgment is dismissed
- 2.Costs of the application to the defendants/respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 2 of the Civil Procedure Act, Order 2 Rule 15(1)(b)(c) and (d) and Order 36(1)(b) of the Civil Procedure Rules 2012
Relief refused
#Striking out of the defences of the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 8th defendants and entry of judgment for the plaintiff as prayed in the plaint
The defences raise bona fide triable issues (limitation, bona fide purchaser, adverse possession, root of title/fraud) and the application was an afterthought brought after the plaintiff's case had substantially proceeded with two witnesses
Costs
The application is dismissed with costs to the defendants/respondents.
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.
The single issue which in my opinion arise for determination is whether the defence filed herein is a sham and raises no triable issue.
In my view that is a triable issue. Whether the respondents lawfully and procedurally obtained title of the suit land or not is an issue that will be determined in a full hearing.
Further, this application is clearly an afterthought having been brought after the plaintiffs’ case has substantially proceeded with two witnesses.
Applying the principles in the decisions cited above to the present circumstances and the application before this court, I come with the irresistible conclusion that the application lacks merit and is hereby dismissed with costs.
Issues in the judgment
#Duplicate paragraph numbering: two separate paragraphs are both numbered 16.
Citation of Vivo Energy case contains a typographical year '[20150]'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwenesi v Bunyali & 7 others", Case Analysis (2023). Environment & Land Case E003 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20611/eng@2023-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.