Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherNotice of motion dated 14/8/2017; Notice of preliminary objection dated 10/11/2017· [2018] KEELC 1282 (KLR)

Dominic Karanja Gathitu v Salimu Suleiman Mahaba [2018] KEELC 1282 (KLR)

Environment and Land Court
5 October 2018
LKL. KOMINGOIAOA. OMOLLO
896 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan land court refused to strike out a suit based on an oral 1980 land sale, ruling the pre-2002 contract dispute must be decided at trial.

What this practically means

#

Executive summary

#
The plaintiff moved the court by notice of motion dated 14/8/2017 seeking injunctive relief restraining the defendant from trespassing on, wasting, constructing on, alienating or otherwise interfering with property known as Kwale/Bamburi 'A'/759 pending the hearing of the main suit, claiming under an alleged sale agreement of 30/4/1980. The defendant filed a notice of preliminary objection dated 10/11/2017 contending that the suit was statutorily barred by Section 3(3) of the Law of Contract Act, Cap 23, there being no written, executed or witnessed contract, and that the court's jurisdiction was therefore ousted, rendering the suit a nullity to be determined in limine. Counsel filed written submissions; the defendant relied on authorities holding that oral land contracts post-dating the 2002 amendment are unenforceable, while the plaintiff invoked Section 23(3)(e) of the Interpretation and General Provisions Act on accrued rights and the D.T. Dobie v Muchira test against summary dismissal. The court held that the alleged agreement predated the 2002 amendment, that the plaintiff already held title and had charged the property to Barclays Bank, and that disputes over witnessing and the signatures on the transfer were matters for evidence at trial. The authorities cited by the defendant were found inapplicable as they concerned post-2002 agreements. The preliminary objection was dismissed with no orders as to costs; the interim application remains pending before the main suit.

Key legal issues

#
01

Whether the plaintiff's suit founded on an alleged oral agreement of sale of land of 30/4/1980 is barred by Section 3(3) of the Law of Contract Act and should be struck out

Holding

The preliminary objection was dismissed; the pre-2002 amendment date of the alleged agreement, the plaintiff's possession of title (having charged the property to Barclays Bank), and the disputed signatures are matters for evidence at the hearing, not for summary determination.

Reasoning

The court held the alleged agreement predates the 2002 amendment of Section 3(3) and that the plaintiff already holds title, having charged the suit property to a bank. Whether the agreement was witnessed and whether the signatures on the transfer are genuine are evidentiary matters. Guided by D.T. Dobie v Muchira, a suit showing a semblance of a cause of action should proceed to trial rather than be summarily dismissed on a preliminary objection.

p. 2

Legal principles established

#
  • A suit ought not to be summarily dismissed unless it is plainly and obviously hopeless and discloses no reasonable cause of action; a suit showing a mere semblance of cause of action should go to full trial.
  • Under the Interpretation and General Provisions Act, a repeal of written law does not affect rights, obligations or liabilities acquired or accrued under the repealed law.

Court orders

#
  1. 1.The preliminary objection dated 10/11/2017 and filed on 13/11/2017 is dismissed
  2. 2.No orders as to costs on the preliminary objection

Authorities

#

Legislation

  • Law of Contract Act, Chapter 23 Laws of KenyaSection 3(3)
  • Interpretation and General Provisions Act, Chapter 2 Laws of KenyaSection 23(3)(e)

Cases cited (5)

  • Daudi Ledama Morintat vs Mary Christine Kiarie & 2 others
    [2017] eKLR
  • Patrick Tarzan Matu & Another vs Nassim Sharriff Abdulla & 2 others
    [2009] eKLR
  • Silverbird Kenya Limited vs Junction Limited and 3 Others
    [2013] eKLR
  • The Owners of Motor Vessel "Lilian S" vs Caltex Oil Kenya Ltd
    [1989] KLRI
  • D. T Dobie & Co (K) Limited vs Muchira
    [1982] KLR 1
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land (interest in land Kwale/Bamburi 'A'/759)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Dominic Karanja Gathitu v Salimu Suleiman Mahaba [2018] KEELC 1282 (KLR)", Case Analysis (2018). Notice of motion dated 14/8/2017; Notice of preliminary objection dated 10/11/2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1282/eng@2018-10-05

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