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ELCPartially AllowedNot stated in the extract (Originating Summons dated 17th May 2013)· [2014] KEELC 385 (KLR)

Dorothy Margare Wanjiku Kung’u v Akash Himatlal Dodhia [2014] KEELC 385 (KLR)

High Court of Kenya
8 May 2014
2,463 words in judgment
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The bottom line

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Kenya's High Court confirmed that caveat-removal cases cannot decide who rightfully owns land under a sale agreement - file a proper lawsuit instead.

What this practically means

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Executive summary

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The Defendant filed a Notice of Motion dated 2nd September 2013 under Order 2 Rule 15(1)(b) and (d) seeking striking out of the Plaintiff's Originating Summons, arguing it was vexatious and an abuse of process, filed to force renegotiation of the purchase price of L.R. No 7741/422 and to remove the Defendant's purchaser's caveat. The Plaintiff responded with a preliminary objection dated 25th October 2013, contending the supporting affidavit was sworn by a stranger (the Defendant's former advocate, Wangai Maina) on contentious facts. The court directed both applications be heard together with written submissions. Applying Mukisa Biscuit, Judge P. Nyamweya held the preliminary objection raised no pure point of law since it required ascertainment of facts as to the deponent's capacity and the exercise of judicial discretion to strike out the affidavit; it failed with costs. On the striking-out application, the court applied D.T. Dobie vs Muchina on the sparing use of striking-out powers and the triable-issues test. Noting the Plaintiff admitted the sale agreement of 26th May 2011 and receipt of a Kshs 2,000,000 deposit, the court held, relying on sections 71 and 73 of the Land Registration Act, 2012, that caveat-removal proceedings cannot determine substantive rights under a sale agreement. The Originating Summons therefore raised no triable issues and was struck out as an abuse of court process, with costs to the Defendant.

Key legal issues

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01

Whether the preliminary objection raised a pure point of law

Holding

It did not, because it required ascertainment of facts (the deponent's capacity) and the exercise of judicial discretion (striking out the affidavit), and it therefore failed with costs.

Reasoning

Applying Mukisa Biscuit, the court held that a preliminary objection cannot be raised where facts must be ascertained or where judicial discretion is invoked. The objection on the advocate's affidavit required factual inquiry into capacity, and the affidavit-striking request required discretion, so the objection was impermissible and was dismissed with costs.

p. 3
02

Whether the Originating Summons should be struck out under Order 2 Rule 15(1)

Holding

Yes - struck out as an abuse of the process of court because it sought determination of substantive contractual disputes in caveat-removal proceedings and raised no triable issues.

Reasoning

The court accepted the Defendant did not dispute the caveat or sale agreement; the Plaintiff's real dispute was the validity of the sale agreement. Citing section 71 and 73 of the Land Registration Act, the court held that caveat proceedings only test whether grounds for the caveat subsist, not substantive rights; the Summons therefore raised no triable issues and was an abuse of process.

p. 4
03

Whether an advocate can swear a supporting affidavit for a client

Holding

Left open as a contested factual/discretionary matter, not decided on the preliminary objection; the Defendant relied on Pattni vs Ali to submit an advocate may do so.

Reasoning

The court did not determine the propriety of the advocate's affidavit because the objection raising it failed as a matter of law. It noted the issue required ascertainment of facts as to the deponent's capacity and would engage judicial discretion, so it was reserved for the appropriate forum.

p. 3

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained or if judicial discretion is sought
  • The power to strike out pleadings should be used sparingly and cautiously; no suit ought to be summarily dismissed unless it appears hopeless and beyond redemption by amendment
  • In caveat-removal proceedings the court is confined to confirming whether the circumstances in section 71 of the Land Registration Act exist to justify the caveat; it cannot determine the parties' substantive rights

Court orders

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  1. 1.The Plaintiff's preliminary objection dated 25th October 2013 is dismissed with costs to the Plaintiff's account (Plaintiff to meet costs of the Preliminary Objection)
  2. 2.The Defendant's Notice of Motion dated 2nd September 2013 is allowed
  3. 3.The Originating Summons dated 17th May 2013 is struck out for being an abuse of the process of court
  4. 4.The Plaintiff shall meet the costs of the Originating Summons and the Defendant's Notice of Motion

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 47, 50, 159(1)(d) and (e)
  • Civil Procedure RulesOrder 2 Rule 15(1)(b) and (d); Order 19 Rule 3; Order 21 Rules 4 and 5
  • Land Registration Act, 2012 (Act No. 3 of 2012)Sections 71, 73 and 2

Cases cited (10)

  • Time Magazine Limited & Another vs Rotich & Another
    (2000) KLR 544
  • Muchanga Investments Ltd vs Safaris Unlimited (Africa) Ltd & 2 Others
    (2009) KLR 229
  • Mpaka Road Development Ltd vs Kana
    (2004) 1 EA 161
  • Dr. Kiama Wangai vs John N. Mugambi and Another
    (2012) e KLR
  • Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd
    (1969) EA 696
  • Omondi & Another vs National Bank of Kenya & 2 Others
    (2001) KLR 579
  • Pattni vs Ali & Others
    (2005) 1 EA 339
  • D.T Dobie Co Ltd vs J.M Muchina
    (1982) KLR 1
  • Kenya Horticulture Exporters (1977) Ltd vs Pape
    (1986) KLR 705
  • Oduor vs Afro Freight Forwarders
    (2002) 2 KLR 652
Jurisdiction invoked
Inherent jurisdiction and Order 2 Rule 15(1) of the Civil Procedure Rules; Land Registration Act, 2012 (ss. 71, 73)

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, "Dorothy Margare Wanjiku Kung’u v Akash Himatlal Dodhia [2014] KEELC 385 (KLR)", Case Analysis (2014). Not stated in the extract (Originating Summons dated 17th May 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/385/eng@2014-05-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.