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ELCPartially AllowedCivil Case No 46 of 2020· [2021] KEELC 3532 (KLR)

Abdulrahman Sheikh Hassan v Maria Angela Defabianis & 2 others [2021] KEELC 3532 (KLR)

Environment and Land Court
30 April 2021
2,408 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Plaintiff, suing as special attorney for Enrico Quercioli, moved the court by Notice of Motion dated 25th June 2020 seeking injunctions to restrain the 1st Defendant and the Land Registrar from revoking his title over Portion No. 1040-CR 46208, Watamu and from interfering with the suit property. He asserted he had purchased the property from Maria Coppo, widow and administrator of the late De Fabianis Lucio, as an innocent purchaser for value. All three Defendants opposed the motion through Grounds of Opposition and Notices of Preliminary Objection, arguing that no cause of action lay against them, that the suit against the Government sought an injunction prohibited by Section 16 of the Government Proceedings Act, and that the complaint about the Registrar's letter of 5th February 2020 belonged in judicial review. The court disposed of the motion and both objections together on written submissions. Applying Mukisa Biscuits, it held that objections predicated on absence of cause of action require fact-finding and exercise of discretion and cannot be raised as preliminary objections. On the judicial review argument, the court found no basis for it, noting the 1st Defendant had not filed a defence and the 2nd and 3rd Defendants did not admit the allegations while simultaneously asserting no decision had been made. On the injunction, applying Giella v Cassman Brown, the court found the Plaintiff had taken possession under a sale agreement and registered his interests, and thus stood to suffer loss absent orders. The preliminary objections were dismissed and the motion allowed in terms of prayer (e), with costs of the application in the main suit.

Key legal issues

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01

Whether an objection that a suit discloses no cause of action can be raised as a preliminary objection

Holding

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.

Reasoning

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.

p. 3
02

Whether the Plaintiff's complaint about the Registrar's letter seeking to revoke his title belongs to judicial review

Holding

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.

Reasoning

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.

p. 3
03

Whether the Plaintiff met the threshold for a temporary injunction under Giella v Cassman Brown

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The two preliminary objections by the 1st, 2nd and 3rd Defendants are dismissed as without basis
  2. 2.The Notice of Motion dated 25th June 2020 is allowed in terms of Prayer No. 'e' thereof
  3. 3.The costs of the application shall be in the main suit

Authorities

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Legislation

  • Government Proceedings ActSection 16
  • Civil Procedure RulesOrder 29 Rule 2(2)(d)
  • Civil Procedure RulesOrder 40 Rule 1(a) and (b)
  • Land Registration ActSections 14 and 79(2)

Cases cited (2)

  • Mukisa Biscuits Manufacturing Company Ltd –vs– West End Distributors Ltd
    (1969) EA 696
  • Giella –vs– Cassman Brown & Company Ltd
    (1973) EA 360
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

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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, "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.