The Plaint That Asked for Everything
Wanjiku sues her former business partner, Kamau, in the Environment and Land Court. The plaint, drafted by a pupil, pleads: (i) a declaration that a 2019 sale agreement over a plot in Thika is void; (ii) special damages of KSh 2,300,000 for 'losses suffered'; (iii) general damages; (iv) 'any other relief the court deems fit'; and (v) interest and costs. The body of the plaint contains one paragraph stating 'the defendant breached the agreement' but no particulars of the breach, no dates of performance, and no facts showing how the sum of KSh 2,300,000 is computed. Kamau's advocate files a defence denying everything generally and pleading a bare 'counterclaim for KSh 500,000' with no facts. At the first case management conference, the judge raises the pleadings on her own motion.
1. Identify the defects in the plaint and state the procedural objections available to Kamau, and whether the court can act on its own motion.
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Defects in the plaint:
- No reasonable cause of action / no material facts. The plaint pleads conclusions ('breached the agreement') rather than material facts as required. Particulars of breach and the date of performance are missing.
- Special damages not particularised. Special damages must be specifically pleaded and strictly proved; a round figure of KSh 2,300,000 with no computation is objectionable.
- Vague omnibus prayer. 'Any other relief' is impermissible; a party must plead the relief sought with precision.
- Possibly wrong forum/limitation issues should be checked (contract claim vs. land - the ELC has jurisdiction over land, but the contract claim may be better pleaded).
Objections available:
- Application to strike out the plaint for disclosing no reasonable cause of action, or to strike out the offending paragraphs (special damages and omnibus prayer) as scandalous, frivolous, or an abuse of process - but striking out is a draconian remedy granted sparingly; amendment is the usual cure.
- Request for further and better particulars of the breach and the KSh 2,300,000.
Own motion: Yes - the court may raise pleading defects on its own motion, particularly at a case management conference, and may order amendment or strike out. The court's power to strike out is discretionary and must be exercised judicially.
2. The defence and counterclaim are also defective. Advise Kamau's advocate on the correct course and draft the key amendments.
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Defects: A general denial is insufficient where specific allegations are made; the defence must deal with each allegation and state the defendant's version of events. The counterclaim must plead material facts and the amount with particulars; a bare figure is liable to be struck out.
Course of action:
- Apply for leave to amend the defence and counterclaim before the hearing - amendment should be allowed if it does not cause prejudice that cannot be compensated by costs and is not made in bad faith or after undue delay.
- In the amended pleading, plead:
- Admissions and specific denials (e.g., 'It is admitted that the agreement was signed on [date]; it is denied that the defendant failed to pay the balance by [date] because...').
- For the counterclaim: the facts giving rise to the KSh 500,000 (e.g., 'the claimant failed to transfer the plot by 30 June 2020, forcing the defendant to rent alternative premises at KSh 50,000 per month for ten months, particulars whereof are...').
- Consider whether the counterclaim is properly within the ELC's jurisdiction.
Advocacy point: Move the application promptly and attach the draft amended pleading; courts look favourably on a party who cures defects rather than forcing a strike-out.