Hassan Shee Sheikh v Amina Shee Yumbe & 2 others [2018] KEELC 2349 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to end a land dispute early, ruling that suits raising genuine disputed questions must proceed to a full trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the applications to strike out/dismiss the suit were merited
Both applications were dismissed; the suit raises triable issues best determined at trial
The court reaffirmed that the jurisdiction under Order 2 Rule 15 must be exercised sparingly and in clear and obvious cases. Because the plaintiff is in occupation, seeks prohibitory and mandatory injunctions in the amended plaint, and the 2nd defendant has filed a counter-claim, determining the matters raised (stamping, want of confirmed grant, payment) would amount to a mini-trial on affidavit evidence, which is impermissible except in plain cases.
Admissibility of the unstamped agreement and validity of sale by a vendor without a confirmed grant
Not determined at this interlocutory stage; these are triable issues requiring evidence at trial
Counsel for the 2nd defendant argued the agreement was inadmissible for want of stamping and void because the vendor lacked a confirmed grant. The court held that making findings on these matters would amount to deciding the case on affidavit evidence rather than at trial, and declined to do so on the applications.
Right to a fair hearing under Article 50(1) of the Constitution
The plaintiff's right to have the dispute decided in a fair hearing weighed against striking out the suit
The court invoked Article 50(1) and Article 25, holding that while a hearing may take the form of affidavit evidence, terminating a suit on affidavits is appropriate only in clear and plain cases, which this was not.
Legal principles established
#- A pleading should only be struck out in clear and obvious cases; if it raises a triable issue the suit must go to trial
- Determination of a suit by affidavit evidence is reserved for clear and plain cases
Court orders
#- 1.The Notice of Motion dated 29th September 2016 by the 2nd defendant is dismissed
- 2.The Notice of Motion dated 17th November 2016 by the 1st defendant is dismissed
- 3.Costs of the two applications are awarded to the plaintiff
- Jurisdiction invoked
- Order 2 Rule 15(1)(b)(c) and (d) of the Civil Procedure Rules and Sections 3, 3A and 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hassan Shee Sheikh v Amina Shee Yumbe & 2 others [2018] KEELC 2349 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2349/eng@2018-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.