Hassan & another (As Administrators of the Estate of Mohamed Hassan Gichunge also known as Mohamed Gichunge Hassan also known as M. Kishungi H. Kitonga - Deceased) v Hassan & 2 others
The bottom line
#Kenya's Environment and Land Court dismissed an attempt to throw out a costs challenge, ruling that disputed facts cannot be decided through preliminary objections.
What this practically means
#Executive summary
#Key legal issues
#Whether an affidavit supporting a reference may be sworn by the respondent's counsel in a contentious matter
The court declined to treat this as a point of law; counsel's depositions concerned matters within his own knowledge as the person steering the matter in court
The court read the supporting affidavit and found the depositions were matters the 1st respondent's counsel knows or can be deemed to know, mostly referring to what transpired in the matter, which counsel himself steered in court. Accordingly the ground did not qualify as a pure point of law for a preliminary objection.
Whether abuse of court process can found a preliminary objection
No - it requires probing of evidence and proof of facts; the court had rejected a similar point in an earlier objection
The court held that determining abuse of process requires probing evidence and proving facts, so it is not a pure point of law. The judge noted the 1st respondent had raised a similar point in an earlier objection which led to striking out of the suit, and that the court had rejected it then, and did the same here.
Whether late filing of a reference without leave is a pure point of law
The time limit is a point of law, but whether the reference was actually filed within time requires proof and computation of facts
The court accepted that the law prescribes the period for filing a reference, making the first ground a pure point of law. However, the parties disputed whether the reference was filed within time, and computation of time requires evidence. The ground therefore could not succeed on the objection as presented.
Legal principles established
#- Whether a reference was filed within time requires proof and ascertainment of facts, and so cannot be determined as a pure point of law
- An allegation of abuse of court process requires probing of evidence and proof of facts and does not qualify as a preliminary objection
Court orders
#- 1.The preliminary objection is dismissed
- 2.Costs of the objection awarded to the 1st respondent
- Jurisdiction invoked
- Environment and Land Court jurisdiction over matters concerning title to land (Embu Municipality 1112/1571) and incidental costs/taxation references
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hassan & another (As Administrators of the Estate of Mohamed Hassan Gichunge also known as Mohamed Gichunge Hassan also known as M. Kishungi H. Kitonga - Deceased) v Hassan & 2 others", Case Analysis (2023). Environment & Land Case E011 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18827/eng@2023-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.