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ELCDismissedNot stated in judgment· [2018] KEELC 4749 (KLR)

Peter Wahome Kamwenga v Thomas Amani Kalama & another [2018] KEELC 4749 (KLR)

Environment and Land Court
24 January 2018
CYC. Yano
2,524 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 dispute, ruling that claims raising genuine questions must go to a full trial, not be decided on paper.

What this practically means

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Executive summary

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The 1st Defendant, Thomas Amani Kalama, brought a Notice of Motion dated 4th April 2017 under Order 2 Rule 15(d) of the Civil Procedure Rules seeking to strike out the Plaintiff Peter Wahome Kamwenga's Plaint dated 16th December 2016, with costs. He argued that the lease of 28th July 2002 and the contract of 6th January 2004 transferring the suit property to the Plaintiff were void ab initio because the property was registered in the name of the 2nd Defendant's deceased father, Henry Maganga, who died on 8th October 1994, and that the transactions violated Sections 45 and 80(2) of the Law of Succession Act; he further argued the 2004 contract was unenforceable for want of attestation under Section 3(3) of the Law of Contract Act. The Plaintiff opposed, contending he was a purchaser for value without notice who had been in possession since 2004, and that the suit raised triable issues requiring full hearing. The court, per C. Yano J, reiterated that the striking-out jurisdiction must be exercised sparingly and only in plain and obvious cases, and that determining whether the transactions were void or unwitnessed would amount to a trial on affidavit evidence. Invoking Articles 50(1) and 25 of the Constitution, the court held the case was not plain and obvious and dismissed the application with costs to the Plaintiff, allowing the suit to proceed to full hearing.

Key legal issues

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01

Whether the suit based on a lease and contract allegedly entered into over a deceased person's property before grant of Letters of Administration is struck out as void

Holding

No - the question whether the lease and contract were void ab initio under the Law of Succession Act is a triable issue that cannot be resolved summarily on affidavit evidence

Reasoning

The 1st Defendant urged that the lease of 2002 and contract of 2004 were void under Sections 45 and 80(2) of the Law of Succession Act because the land was registered in the name of a deceased person. The court held that determining this would require a finding based on affidavit evidence, a mini-trial inappropriate on an application to strike out. Since the Plaintiff's claim raises triable issues and the cause of action is against the 2nd Defendant, the suit must proceed to full hearing.

p. 3
02

Whether the contract of 6th January 2004 is unenforceable for want of attestation under Section 3(3) of the Law of Contract Act

Holding

This too is a triable issue not determinable on a striking-out application

Reasoning

The 1st Defendant contended the 2004 contract was unwitnessed and thus unenforceable under Section 3(3) of the Law of Contract Act, relying on cited authorities. The court declined to make that determination at the interlocutory stage, holding that summary jurisdiction applies only in plain and obvious cases and that the plaintiff should not be deprived of a trial unless the claim is hopeless and incurable by amendment.

p. 4

Legal principles established

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  • The power to strike out pleadings under Order 2 Rule 15(d) must be exercised sparingly, only in clear and obvious cases, and where a pleading raises a triable issue the suit ought to go to trial
  • A court should not determine whether a transaction is void ab initio on an application to strike out, as that requires assessment of evidence properly tested at trial

Court orders

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  1. 1.The Notice of Motion dated 4th April 2017 is dismissed
  2. 2.Costs of the application awarded to the Plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(d)
  • Law of Succession ActSection 45
  • Law of Succession ActSection 80(2)
  • Law of Contract Act Cap 23 Laws of KenyaSection 3(3)
  • Land Registration ActSection 25
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 25

Cases cited (10)

  • Peter Ombui Nyangoto –vs- Elizabeth Matundura & Another
    (2013)eKLR
  • Jane Catherine K. Karani –vs- Daniel Mureithi Wachira
    (2014) eKLR
  • Nyeri Teachers Investment Company Ltd –vs- Solio Ranch Limited & Another
    (2015)eKLR
  • Kenya Ports Authority –vs- Fadhili Juma Kisuwa
    (2018)eKLR
  • Mapis Investment (K) Limited –vs- Kenya Railways Corporation
    (2006)eKLR
  • David Sironga Ole Tukai –vs- Francis Arap Muge & 2 Others
    (2014)eKLR
  • Rose Wakanyi Karanja & 3 Others –vs- Geoffrey Chege Kirundi & Another
    (2016) eKLR
  • Twin Buffalo Safaris Limited –vs- Business Partners International Limited
    (2015)eKLR
  • DT Dobie & Company Kenya Limited –vs- Muchina
    (1980)KLR
  • Yaya Towers Limited –vs- Trade Bank Limited (in liquidation)
    Civil Appeal No.35 of 2000
Jurisdiction invoked
Order 2 Rule 15(d) of the Civil Procedure Rules

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, "Peter Wahome Kamwenga v Thomas Amani Kalama & another [2018] KEELC 4749 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4749/eng@2018-01-24

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