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ELCDismissedELC 841 of 2014 (lead file, consolidated with ELC 831 of 2016)· [2018] KEELC 3218 (KLR)

Edward Kinuthia Muchene & another v Simon Macharia Muchene & 2 others [2018] KEELC 3218 (KLR)

Environment and Land Court
18 May 2018
BEB M Eboso
1,536 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to throw out a land sale dispute, ruling that only hopeless suits with no possible fix should be struck out before trial.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Nairobi (B M Eboso, J) in consolidated suits ELC 841 of 2014 (lead file) and ELC 831 of 2016, arising from a sale agreement of 16/5/2011 over a 0.18 hectare portion of Dagoretti/Ruthimitu/1039 for Ksh 4,500,000. The plaintiffs, who paid Ksh 4,180,000, sought specific performance, nullification of the defendants' transfer of the property (Dagoretti/Ruthimitu/1282) to the 3rd defendant on grounds of fraud, and, in the alternative, a refund. The defendants countered that the contract was vague and void for want of land control board consent, transferred the property to the 3rd defendant (who filed the consolidated suit for vacant possession), and brought a Further Amended Notice of Motion dated 23/6/2017 seeking to strike out the plaintiffs' suit on grounds of illegality under Section 22 of Cap 302. Applying the D.T. Dobie principles, the court held the suit is not hopeless: it discloses triable issues, namely enforceability of the contract, refundability of the money paid (which the defendants admit receiving), breach, and entitlement to 15% interest. The application was dismissed with costs to the plaintiffs in ELC 841 of 2014. The substantive claims remain for trial.

Key legal issues

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Whether the defendants' application to strike out the plaintiffs' suit for illegality (absence of land control board consent) should be allowed

Holding

The application is dismissed because the plaint discloses triable issues, including the alternative prayer for refund of Ksh 4,180,000 which the defendants admit receiving

Reasoning

The court applied the D.T. Dobie principles, holding that the draconian jurisdiction to strike out is exercised only where a suit is hopeless and incurable by amendment. On analysis of the amended plaint, the court identified four triable issues: enforceability of the contract, refundability of the money paid, breach of the contract, and entitlement to interest. Since the defendants admit receipt of the purchase price and the plaintiffs plead an alternative refund prayer, the suit shows at least a semblance of a cause of action and must proceed to trial.

p. 3

Legal principles established

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  • A suit ought not to be summarily dismissed unless it is plainly hopeless, discloses no reasonable cause of action and is incurable by amendment; a mere semblance of a cause of action warrants trial

Court orders

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  1. 1.The defendants' Further Amended Notice of Motion dated 23rd June 2017 is dismissed
  2. 2.The Plaintiffs in ELC 841 of 2014 shall have costs of the application

Authorities

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Legislation

  • Land Control ActSection 8
  • Land Control Act (Cap 302)Section 22

Cases cited (1)

  • D.T. DOBIE & COMPANY (KENYA) LTD V JOSEPH MBARIA MUCHINA & ANOTHER
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Environment and Land Court Act over the consolidated suits ELC 841 of 2014 and ELC 831 of 2016 (consolidation order issued 19/4/2017)

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, "Edward Kinuthia Muchene & another v Simon Macharia Muchene & 2 others [2018] KEELC 3218 (KLR)", Case Analysis (2018). ELC 841 of 2014 (lead file, consolidated with ELC 831 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3218/eng@2018-05-18

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