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ELCDismissedChamber Summons application dated 5th February 2019 (suit filed 2nd November 2017)· [2020] KEELC 2402 (KLR)

Didier Georges Joseph Ghislain Crahay & another v Davidson Matano & another [2020] KEELC 2402 (KLR)

Environment and Land Court
27 May 2020
JOJ.O. OLOLA
1,518 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to remove an advocate from a land-sale fraud lawsuit, holding that genuine factual disputes must be decided at trial, not struck out early.

What this practically means

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Executive summary

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This judgment resolves a Chamber Summons dated 5th February 2019 by which the 2nd Defendant, an advocate who acted for the Vendor in a land sale, sought to have the suit against him struck out on grounds that he was improperly joined, that no reasonable cause of action was disclosed against him, and that the dispute concerned a Sale Agreement dated 4th December 2012 between the Plaintiffs and the 1st Defendant. The application was opposed by the Plaintiffs, who maintained that the advocate was central to the dispute: the 1st Defendant denied executing the Agreement and receiving the Kshs 11,000,000/- allegedly paid towards the purchase price through the 2nd Defendant, who prepared and certified the Agreement; the signature was found fraudulent upon forensic examination by the Directorate of Criminal Investigations; and the 2nd Defendant admitted in a Police statement that he never paid any money to the Vendor. The 1st Defendant did not participate. The court, applying Order 1 Rule 10(2) and Order 2 Rule 15 of the Civil Procedure Rules and the DT Dobie test of a reasonable cause of action, held that the governing question was whether triable issues had been raised. Finding that the advocate was a necessary party and that genuine factual disputes existed, the court dismissed the application with costs to the Plaintiffs. The main suit, seeking transfer of Land Parcel No. Chembe/Kibabamshe/364 or repayment of Kshs 21,002,140/-, remains for trial.

Key legal issues

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01

Whether the advocate (2nd Defendant) was improperly joined as a party

Holding

The 2nd Defendant is a necessary party despite having ceased acting for the 1st Defendant

Reasoning

The 1st Defendant denies executing the Sale Agreement and receiving the purchase monies, which were allegedly paid through the 2nd Defendant. The 2nd Defendant prepared and certified the Agreement and confirmed in a Police statement that he paid no money to the Vendor. These circumstances raise triable issues against him, making his presence necessary for effective adjudication.

p. 4
02

Whether the Plaint discloses no reasonable cause of action against the 2nd Defendant

Holding

The Plaint raises triable issues; dismissal under Order 2 Rule 15 was unwarranted

Reasoning

Applying DT Dobie, a cause of action need only show some chance of success on the pleaded allegations. The Plaintiffs allege the 2nd Defendant received monies under an Agreement he prepared and certified, and that the Vendor's signature was found fraudulent on forensic examination. Such contested factual matters cannot be resolved summarily on a striking-out application.

p. 3

Legal principles established

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  • A suit ought not to be summarily dismissed unless it plainly and obviously discloses no reasonable cause of action and is beyond redemption by amendment; a semblance of a cause of action suffices to allow it to proceed.
  • The overriding principle in an application to strike out a party or pleading is whether triable issues have been raised against a defendant.

Court orders

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  1. 1.The Chamber Summons application dated 5th February 2019 is dismissed
  2. 2.Costs of the application awarded to the Plaintiffs

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 2 Rule 15
  • Civil Procedure Rules (repealed)Order VI Rule 13(1)

Cases cited (1)

  • DT Dobie & Company (K) Ltd –vs- Muchina
    (1982) KLR
Jurisdiction invoked
Original jurisdiction under the Civil Procedure Rules (Order 1 Rule 10(2) and Order 2 Rule 15)

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, "Didier Georges Joseph Ghislain Crahay & another v Davidson Matano & another [2020] KEELC 2402 (KLR)", Case Analysis (2020). Chamber Summons application dated 5th February 2019 (suit filed 2nd November 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2402/eng@2020-05-27

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