Mawando Limited v Thousand Palms Beach Hotel Limited & 2 others [2019] KEELC 2420 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to strike out a land suit, ruling that fraud and forgery claims are triable issues that must be tested at a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit should be struck out as an abuse of process and founded on forged documents
The application was dismissed; allegations of forgery and falsehood raise triable issues that must be tested at a full hearing, not determined on affidavit evidence
The court applied DT Dobie v Muchina and Yaya Towers: the striking-out jurisdiction is exercised sparingly, only in plain and obvious cases. Making findings that the Plaintiff's documents were forgeries would amount to determining the case on affidavit evidence, conducting a mini-trial without cross-examination. The Plaintiff did not admit the facts asserted, so the case is not plain and obvious. Article 50(1) fair hearing rights and the overriding objective favour a full hearing.
Whether an advocate for a party may swear the supporting affidavit in a contentious matter
No; the advocate swearing a contentious affidavit created a legal muddle, and this undermined the application
Order 19 Rule 3(1) of the Civil Procedure Rules confines affidavits to facts the deponent can prove of own knowledge, and Rule 9 of the Advocates Practice Rules prohibits advocates swearing affidavits in contentious matters. Following Odunga, J in the Mike Sonko case, an advocate swearing on disputed facts becomes a witness subject to cross-examination. The appropriate deponent was a director of the Applicant.
Legal principles established
#- A suit should not be summarily struck out unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is incurable by amendment
- The power to strike out pleadings must be sparingly exercised and only in the clearest of cases; if a pleading raises a triable issue the suit ought to go to trial
- Advocates should not swear affidavits on contentious, disputed facts in matters they are handling
Court orders
#- 1.The 1st Defendant/Applicant's Application dated 2nd June 2018 is dismissed
- 2.Costs of the application awarded to the Plaintiff
- Jurisdiction invoked
- Articles 159, 25(c), 50(1) and 149(2)(b)(d) and (e) of the Constitution; Sections 1A and 1B of the Civil Procedure Act; Order 2 Rule 15(1)(b)(c) & (d) of the Civil Procedure Rules; Section 3 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mawando Limited v Thousand Palms Beach Hotel Limited & 2 others [2019] KEELC 2420 (KLR)", Case Analysis (2019). Not stated in the judgment (referenced proceedings: Mombasa HCCC No.331 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2420/eng@2019-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.