Nassor Suleiman Mbaruk v Jamila Nassir Ali & another [2017] KEELC 102 (KLR)
The bottom line
#A Kenyan land sale agreement is valid if written and signed by both parties — a missing witness signature won't get the case thrown out.
What this practically means
#Executive summary
#Key legal issues
#Validity of a sale of land agreement under section 3(3) of the Law of Contract Act where the written, signed agreement lacks witness attestation
Attestation by a witness is not a statutory requirement under section 3(3); a written agreement signed by both parties is valid and the absence of attestation does not invalidate the sale
The court noted the agreements dated 24/11/2005 and 6/7/2011 were in writing and signed by both the plaintiff and the 2nd Defendant, the seller. Money had changed hands and the parties' intention to sell a portion of land was clear. Guided by Article 159(2)(d) of the Constitution, the court held it would be unfair to invalidate the sale merely for want of attestation, since section 3(3) requires only writing and signature.
Whether the suit should be struck out for disclosing no reasonable cause of action
The suit is not hopeless or weak and discloses a semblance of a cause of action; striking out was not warranted
Applying D.T. Dobie & Co. Ltd v Muchina and Surinder Kumar Bij v Agility Logistics Ltd, the court held that a suit should only be struck out where it is plainly and obviously hopeless and beyond redemption by amendment. The pleadings showed a live dispute over a land sale warranting trial, not summary dismissal.
Procedural propriety of the strike-out application supported by an affidavit
The application was fatally defective because it was supported by an affidavit, contrary to Order 2 rule 15(2) which prohibits evidence on such an application
Order 2 rule 15(2) provides that no evidence shall be admissible on an application under sub-rule 1(a); the application shall state concisely the grounds. The Defendant's application was supported by the affidavit of Nassir Ali Said, the 2nd Defendant. The court found the rule mandatory and held that on this ground alone the application fails, before proceeding to consider the merits anyway.
Legal principles established
#- An application to strike out a pleading under Order 2 rule 15(1)(a) must be made without a supporting affidavit, as rule 15(2) prohibits admission of evidence and is mandatory
- A suit should not be summarily dismissed unless it plainly and obviously discloses no reasonable cause of action and is beyond redemption by amendment
Court orders
#- 1.The Notice of Motion dated 14th March 2017 seeking to strike out the suit is dismissed
- 2.Costs of the application awarded to the Plaintiff/Respondent
- Jurisdiction invoked
- Sections 1A, 1B and 3B of the Civil Procedure Act and Order 2 rule 15(a) of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nassor Suleiman Mbaruk v Jamila Nassir Ali & another [2017] KEELC 102 (KLR)", Case Analysis (2017). Not stated (Mombasa ELC, Notice of Motion dated 14th March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/102/eng@2017-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.