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ELCPartially AllowedNot stated in the judgment as provided

Tikolo & another v Owino (Environment and Land Case E001 of 2023) [2025] KEELC 6843 (KLR)

High Court of Kenya
9 October 2025
2,080 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Applicants (Plaintiff) moved the court by Notice of Motion dated 4th October 2024 seeking striking out of the Defendant's Notice of Appointment of Advocates and Statement of Defence both dated 19th June 2023, on grounds that they were not properly on record as the purported author disowned them. The Applicant also sought entry of default judgment in the sum of Kshs. 53,570,000. The Respondent (Defendant), through his Replying Affidavit, attributed the irregular filing to mistakes by advocates he had engaged, denied knowledge of the disowned defence, and sought an opportunity to regularize his documents. The court found that a pleading disowned by its purported author and filed fraudulently cannot be sustained on the record, and struck out both the Notice of Appointment of Advocates and the Statement of Defence. However, exercising the court's inherent discretion under Section 3A of the Civil Procedure Act and noting the Defendant's expressed intention to defend the suit, the court declined to enter default judgment. The Defendant was granted 14 days to regularize the record and file a proper defence. The court held that striking out irregular pleadings does not automatically shut a litigant out from the seat of justice. Costs of the application were awarded to the Plaintiff against the Defendant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Notice of Appointment of Advocates dated 19th June 2023 should be struck out and expunged from the record
  2. 2.Whether the Statement of Defence dated 19th June 2023 should be struck out and expunged from the record
  3. 3.Whether judgment in default of defence should be entered for the Plaintiff
  4. 4.Whether the Defendant should be granted leave to defend the suit

Key legal issues

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01

Validity of pleadings disowned by their purported author

Holding

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.

Reasoning

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.

p. 4
02

Right to be heard on the merits notwithstanding irregular pleadings

Holding

Despite striking out the irregular documents, the court exercised discretion to allow the Defendant an opportunity to file a proper defence within 14 days.

Reasoning

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.

p. 4
03

Default judgment against the Defendant

Holding

The court declined to enter default judgment, finding that justice demanded the Defendant be heard.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Notice of Appointment of Advocates dated 19/6/2023 struck out and expunged from the record
  2. 2.Statement of Defence dated 19/6/2023 struck out and expunged from the record
  3. 3.Time extended for the Defendant to regularize the record and file defence within 14 days of the date of the ruling
  4. 4.Costs of the application borne by the Defendant
  5. 5.Plaintiff at liberty to respond further

The bench

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

majority

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

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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.

p. 4

Costs

The costs of the application shall be borne by the Defendant

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.

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.
p. 4Striking out pleadings disowned by their purported author
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.
p. 4Discretion to allow a litigant to be heard 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.
p. 5Final orders - leave to regularize and file defence

Issues in the judgment

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material

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

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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, "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.