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ELCPartially AllowedNot stated in judgment

Ngula v Kuria & 2 others (Environment & Land Case 115 of 2011) [2025] KEELC 4518 (KLR)

Environment and Land Court
16 June 2025
2,838 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to throw out a defence over a missing verifying affidavit, showing courts prioritize fair hearings over procedural technicalities.

What this practically means

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Executive summary

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This Environment and Land Court ruling by Christine Ochieng, J, delivered virtually at Nairobi on 16th June 2025, determined two competing interlocutory applications in a long-running land suit. The plaintiff sought to strike out the 1st and 2nd defendants' amended statement of defence and counterclaim dated 24th November 2014 for want of a verifying affidavit on the counterclaim, and to strike out their supplementary list of documents dated 7th June 2019, filed after close of pleadings and without leave. The 1st and 2nd defendants in turn sought leave to amend their defence and counterclaim to cure the verifying affidavit defect under Order 7 Rule 5(a) of the Civil Procedure Rules. The court declined to strike out the defence and counterclaim, holding that the power to strike out for lack of a verifying affidavit is permissive and discretionary, that the defence raised triable issues, and that no prejudice was demonstrated by the plaintiff, who had closed his case. Relying on Article 159(2)(d) and the oxygen principle, the court refused to sacrifice the defence on a procedural technicality. However, it expunged the supplementary list of documents filed out of time and without leave, since counsel had earlier confirmed compliance with Order 11 and leave should not prejudice an opposing party. Leave to amend the defence and counterclaim was granted, with directions to file the amended pleading within seven days. Costs were made 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 and 2nd Defendants' Statement of Defence including Counterclaim dated 24th November 2014 should be struck out for want of a verifying affidavit on the counterclaim
  2. 2.Whether the 1st and 2nd Defendants' Supplementary List of Documents dated 7th June 2019, filed out of time and without leave, should be struck out/expunged
  3. 3.Whether the 1st and 2nd Defendants should be granted leave to amend their Statement of Defence including Counterclaim to bring it into conformity with Order 7 Rule 5(a) of the Civil Procedure Rules

Key legal issues

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01

Whether absence of a verifying affidavit on a counterclaim warrants striking out

Holding

No - striking out is discretionary and permissive; the court declined to strike out the defence and counterclaim on this ground

Reasoning

Order 4 Rule 1(6) confers a discretionary power, not a mandatory duty. The defence including counterclaim had been on record since 2014, the plaintiff filed a reply to defence and defence to counterclaim, and no prejudice was demonstrated after closing his case. Relying on Article 159(2)(d) and the oxygen principle, the court held the defence raises triable issues and should not be sacrificed for the procedural defect.

p. 5
02

Whether a supplementary list of documents filed without leave after close of pleadings should be expunged

Holding

Yes - the court expunged the Supplementary List of Documents dated 7th June 2019

Reasoning

Counsel had earlier confirmed compliance with Order 11 and there was no indication of intent to file further documents. The parties had closed their cases and an earlier application to reopen had been declined. Leave is discretionary and should not be used to prejudice an opposing party.

p. 5
03

Whether leave to amend the defence and counterclaim should be granted at this late stage

Holding

Yes - leave granted, confined to curing the procedural defect of including a verifying affidavit

Reasoning

Section 100 CPA permits amendments at any stage; the amendment sought only brings the pleading into conformity with Order 7 Rule 5(a) without introducing new issues, and causes no prejudice to the plaintiff or 3rd defendant. The court directed filing within seven days.

p. 6

Legal principles established

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  • The power to strike out a plaint or counterclaim for lack of a verifying affidavit is permissive, not mandatory, and should be exercised sparingly
  • Amendments of pleadings should be liberally allowed if they can be made without injustice, or where injustice can be compensated by costs
  • Section 100 of the Civil Procedure Act permits courts to allow amendments at any stage to determine real substantive issues

Court orders

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  1. 1.Plaintiff's Notice of Motion dated 28th November 2024 allowed only to the extent of expunging from the record the Supplementary List and Bundle of Documents dated 7th June 2019 filed out of time and without leave
  2. 2.1st and 2nd Defendants' Notice of Motion dated 26th February 2025 allowed; leave granted to amend their Statement of Defence including Counterclaim
  3. 3.1st and 2nd Defendants directed to file and serve their Amended Statement of Defence including Counterclaim within seven (7) days
  4. 4.Costs to be in the cause

The bench

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

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction under the Civil Procedure Act (Cap 21) and Civil Procedure Rules, 2010; constitutional provisions invoked: Articles 50(1) and 159(2)(d)

Relief refused

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Striking out the 1st and 2nd Defendants' Amended Statement of Defence and Counterclaim dated 24th November 2014

Lack of a verifying affidavit on the counterclaim is not mandatory grounds for striking out; the power is discretionary and should be exercised sparingly; no prejudice demonstrated

p. 5

Costs of the applications

Court ordered costs in the cause rather than awarding costs to any party

p. 6

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.

I will proceed to expunge from record, the Supplementary List and Bundle of Documents dated the 7th June, 2019, filed out of time and without leave.
p. 5expunging documents filed out of time without leave
I will grant leave to the 1st and 2nd Defendants to amend their Statement of Defence including Counterclaim. I direct the 1st and 2nd Defendants to file and serve their Amended Statement of Defence including Counterclaim within seven (7) days.
p. 6final orders - leave to amend
I however find the Plaintiff's Notice of Motion application dated the 28th November, 2024 partially successful and will allow it to the extent of expunging the Supplementary List of Documents dated the 7th June, 2019 from the Court records.
final orders - partial success
Rules of procedure are the hand maidens and not mistresses of justice. They should not be elevated to a fetish.
p. 4procedural technicality and substantive justice
Costs will be in the cause.
p. 6costs

Issues in the judgment

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minor

Case number and neutral citation not stated anywhere in the judgment

minor

Order 4 Rule 1(2) is quoted as requiring a verifying affidavit for a plaint only, yet the dispute concerns a counterclaim under Order 4 Rule 5; the judgment also states a verifying affidavit is not mandatory for a Defence, which the Defence is not required to verify

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, "Ngula v Kuria & 2 others (Environment & Land Case 115 of 2011) [2025] KEELC 4518 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4518/eng@2025-06-16

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