Parklands Properties Ltd v Patel

High Court, at Nairobi August 10, 1970

Madan J

Civil Case No 2 of 1970

Civil practice and procedure - pleadings - striking out pleadings for failure to comply with the rules of pleading - party may be given an opportunity to file an amended pleading – defence failing to comply with the rules of pleading, but on the face of it answering the claim - such defence may not be struck out.

Landlord and tenant - leases and tenancies - determination of leases and tenancies - tenancies at will and statutory leases from year to year or month to month - Limitation of Actions Act (Cap 22), Section 12(2), contrasted with Transfer of Property Act, 1882, of India (Orders in Council and Applied Acts, Group 8), Section 106.

Adverse possession - proof of - adverse possession as a matter of evidence - particulars of adverse possession.

The plaintiff filed an action against the defendant for specific performance of an oral agreement for sale of a house, and other reliefs. The defendant filed a defence denying that there was any agreement to purchase, and pleaded that he was in adverse possession of the house. But the defence was evasive and vague and lacked particularity, whereupon the plaintiff applied to have certain parts of the defence connected with the claim to adverse possession struck out on the ground that the defence failed to comply with the rules of pleading and that material facts to support the claim of adverse possession were not pleaded. Leave was given to amend the defence, and an amended defence was filed setting out further and better particulars. The plaintiff contended that the amended defence still failed to disclose an answer to his claim.

Held :

1. Where a pleading has failed to comply with the rules of pleading (such as where the pleading is evasive, vague and lacking particularity) and the material facts are not pleaded, on an application to have the pleading or parts of it struck out on that ground, the hearing of the application may, in the discretion of the court, be adjourned and the party given leave to file an amended pleading within a time allowed for that purpose in order that a party may not be deprived of any possible claim or defence.

2. Instead of striking out a pleading which offends the rules of pleading it may, in the discretion of the court, be amended in certain circumstances.

3. The issue whether a party’s possession of a piece of land is adverse is a matter for evidence, and a decision thereon depends upon whether the party alleging adverse possession successfully establishes the particulars of adverse possession pleaded.

4. The party who justifiably made the application for striking is entitled to the costs of the application if the particulars subsequently pleaded in the amended pleading could and should have been included in the original pleading.

5. Section 12(2) of the Limitation of Actions Act makes provision for the accrual of the right of action in the case of an expired tenancy at will, and it is unrelated to Section 106 of the Transfer of Property Act, 1882 which deals with the duration and termination of periodical leases from year to year or month to month in the absence of a contract, local law or usage to the contrary. The two provisions in the respective Acts are designed to serve separate purposes under Section 106 of the 1882 Act a tenancy is brought or sought to be brought to an end by an act of the landlord or tenant, but under Section 12(2) of the statute of limitations the tenancy is determined by operation of law in a certain event which the parties cannot prevent upon the event taking place.

6. That the amended defence, on the face of it, provided an answer to the plaintiff’s claim, and that the defence of adverse possession was a matter for evidence, and the application to strike out the amended defence was rejected, but the costs of the application was granted to the applicant in any event.

The application was dismissed.

Cases

No case referred to.

Statutes

1. The Limitation of Actions Act (Cap 22) Sections 12(2), 13(1) & 7

2. The Transfer of Property Act, 1882, of India (Group 8, Orders in Council and Applied Acts) Section 106