Abdulrahman Sheikh Hassan v Maria Angela Defabianis & 2 others [2021] KEELC 3532 (KLR)
The bottom line
#A Watamu property buyer won temporary court protection against title revocation, as the court dismissed technical objections that would have derailed the case.
What this practically means
#Executive summary
#Key legal issues
#Whether an objection that a suit discloses no cause of action can be raised as a preliminary objection
No - such an objection requires the court to exercise its discretion to strike out after ascertaining facts from the pleadings, and is therefore not a pure point of law.
Applying Mukisa Biscuits, the court held that determining whether a plaint discloses a cause of action requires ascertaining facts arising from the pleadings and exercising discretion to strike out. That disqualifies it as a preliminary objection, which must be argued on assumed facts without ascertaining anything.
Whether the Plaintiff's complaint about the Registrar's letter seeking to revoke his title belongs to judicial review
No - the objection failed because there was no established decision by the Land Registrar, and the 2nd and 3rd Defendants did not admit prompting by the 1st Defendant.
The Defendants contended the dispute arose from an administrative decision reviewable only by judicial review. The court noted the 1st Defendant had not filed a defence denying that she prompted the Registrar, and the 2nd and 3rd Defendants were strangers to those pleadings while also asserting no decision had been made. On that material the court found no basis for insisting on judicial review.
Whether the Plaintiff met the threshold for a temporary injunction under Giella v Cassman Brown
Yes - the Plaintiff took possession pursuant to a sale and had his interests registered on the title, so he stood to suffer loss unless the injunction issued.
The Plaintiff produced a sale agreement dated 22nd December 2017 under which Maria Coppo sold her half share of the property for 95,000 Euros, and he took possession. The court found the 1st Defendant is the daughter of the late De Fabianis Lucio and there are disputes over the estate. Possession and registration of interests established likely loss absent the orders, satisfying the prima facie and irreparable harm limbs.
Legal principles established
#- A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained or judicial discretion exercised.
- Where a party takes possession of suit property pursuant to a sale and his interests are registered on the title, he stands to suffer loss and damage unless interim injunctive orders are issued.
Court orders
#- 1.The two preliminary objections by the 1st, 2nd and 3rd Defendants are dismissed as without basis
- 2.The Notice of Motion dated 25th June 2020 is allowed in terms of Prayer No. 'e' thereof
- 3.The costs of the application shall be in the main suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute relating to title to land (Portion No. 1040-CR 46208, Watamu); no specific provision cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdulrahman Sheikh Hassan v Maria Angela Defabianis & 2 others [2021] KEELC 3532 (KLR)", Case Analysis (2021). Civil Case No 46 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3532/eng@2021-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.