Tikolo & another v Owino (Environment and Land Case E001 of 2023) [2025] KEELC 6843 (KLR)
The bottom line
#The High Court struck out a defence filed fraudulently but gave the Defendant a final chance to file a proper defence instead of awarding Ksh 53.57 million by default.
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 Notice of Appointment of Advocates dated 19th June 2023 should be struck out and expunged from the record
- 2.Whether the Statement of Defence dated 19th June 2023 should be struck out and expunged from the record
- 3.Whether judgment in default of defence should be entered for the Plaintiff
- 4.Whether the Defendant should be granted leave to defend the suit
Key legal issues
#Validity of pleadings disowned by their purported author
The Notice of Appointment of Advocates and the Statement of Defence were struck out because they were not properly on record, the purported author having denied authorship.
The court found that a pleading cannot stand where its authorship is denied and where the documents impute criminality. Such documents were not properly filed and were therefore liable to be expunged.
Right to be heard on the merits notwithstanding irregular pleadings
Despite striking out the irregular documents, the court exercised discretion to allow the Defendant an opportunity to file a proper defence within 14 days.
The court invoked Section 3A of the Civil Procedure Act, holding that striking out a defence should not automatically shut a litigant out from the seat of justice where triable issues exist. The court noted the Defendant's expressed intention to defend the suit based on a purchase of the suit property and granted leave to regularize.
Default judgment against the Defendant
The court declined to enter default judgment, finding that justice demanded the Defendant be heard.
Having allowed the Defendant an opportunity to defend the suit, the court found no need to consider the remaining prayers in the application, including entry of default judgment for Ksh 53,570,000.
Legal principles established
#- A pleading filed fraudulently and disowned by its purported author ought not to be sustained and must be struck out.
- Where a pleading is struck out, the court retains discretion under Section 3A to allow a party to regularize the record and be heard on the merits in the interests of justice.
Court orders
#- 1.Notice of Appointment of Advocates dated 19/6/2023 struck out and expunged from the record
- 2.Statement of Defence dated 19/6/2023 struck out and expunged from the record
- 3.Time extended for the Defendant to regularize the record and file defence within 14 days of the date of the ruling
- 4.Costs of the application borne by the Defendant
- 5.Plaintiff at liberty to respond further
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 3B of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules
Relief refused
#Judgment in default of defence entered for the Plaintiff for Ksh 53,570,000 and interest
The court exercised its discretion in favour of allowing the Defendant an opportunity to file a proper defence rather than entering default judgment.
Costs
The costs of the application shall be borne by the Defendant
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.
For me I would not sustain a pleading that has been filed fraudulently. It was not properly filed and it must be struck out for this reason alone.
It is my considered view that this is a case in which the discretion of the court should be exercised in favour of the Defendant, so that the case can be heard and determined on the merits.
Time is hereby extended for the Defendant to regularize the record and file defence within 14 days of the date of this ruling.
Issues in the judgment
#The judgment text does not include the cause title, case number, or neutral citation for the matter, making full identification of the case impossible from the document alone.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tikolo & another v Owino (Environment and Land Case E001 of 2023) [2025] KEELC 6843 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6843/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.