Said & 2 others v Schering
The bottom line
#Kenya's Court of Appeal ruled that land disputes with contested facts must go to full trial, not be struck out early.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC Judge erred in declining to strike out the suit for want of locus standi
The appeal fails; the Judge correctly found the suit raised triable issues and was not a clear and plain case for striking out
The Judge was exercising judicial discretion when declining to strike out. The pleadings and affidavits disclose contested matters of fact, including whether a trust existed between the 1st appellant and the respondent over Kwale/Galu Kinondo/755. Following D.T. Dobie, such contested factual questions are for trial, not for summary determination on a striking-out application. The preliminary objection was in fact considered by the Judge.
Standard for appellate interference with discretionary decisions
The Court of Appeal will not interfere with a judge's discretion absent misdirection or manifest clear wrongness resulting in misjustice
Applying Mbogo v Shah, the Court held that the learned Judge's dismissal of the striking-out application and preliminary objection was a discretionary decision. The appellants did not demonstrate any misdirection or that the Judge was clearly wrong. The Court endorsed fully the Judge's approach as consistent with established striking-out principles.
Competence of the appeal on account of an incomplete record
The objection to the appeal's competence was not properly taken at that stage in light of the proviso to Rule 84 of the Court of Appeal Rules
The respondent argued the appeal was incompetent due to an incomplete record non-compliant with Rule 87. The Court declined to address the issue, holding that in light of the proviso to Rule 84 the complaint was not properly taken at that stage, and it need not be resolved.
Legal principles established
#- An appellate court will not interfere with the exercise of judicial discretion by a judge unless satisfied the judge misdirected himself or was clearly wrong, resulting in a wrong decision or misjustice
- The power to strike out a pleading under Order 2 Rule 15 must be exercised sparingly, in clear and obvious cases, without conducting a mini-trial
- A court dealing with a striking-out application must not usurp the function of the trial court where contested matters of fact exist
Court orders
#- 1.Appeal dismissed with costs to the respondent
- On appeal from
- Environment and Land Court at Mombasa
- ELC Case No. 442 of 2017
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Rules; appeal against a ruling of the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Said & 2 others v Schering", Case Analysis (2022). Civil Appeal 142 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/552/eng@2022-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.