Hussein Tareq Abdalla v Dalal Juma Hassan & 15 others
The bottom line
#Kenya's Mombasa Land Court refused to strike out a land dispute, sending the parties to the Land Registrar through mediation instead of a full trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Motion application dated 4th March 2022 by the 1st, 5th, 6th, 7th, 8th and 12th Defendants/Applicants has any merit
- 2.Whether the parties herein are entitled to the reliefs sought
- 3.Who will bear the costs of this application
Key legal issues
#Whether the suit should be struck out for non-compliance with Sections 94 and 96 of the Land Registration Act before sale of undivided shares
The application fails; whether Sections 94 and 96 are mandatory pre-conditions raises triable issues requiring evidence, not determination on a striking-out application
The court held that the applicants were inviting it to conduct a mini-trial on the merits by testing the Plaintiff's claim against Sections 94 and 96 of the Land Registration Act. Whether those sections are mandatory or permissive, and whether the sale agreements were valid, are factual and legal questions for trial. The Plaint discloses a reasonable cause of action and is not frivolous, vexatious or an abuse of process, so striking out was unwarranted.
Whether the dispute should be resolved through the statutory mechanism under the Land Registration Act
The proper procedure is for the Land Registrar to resolve the partition issue, with the outcome filed in court for adoption; failing that, the suit proceeds to trial
The court observed that all parties by consensus advocated the statutory route. It directed that the Land Registrar pick up the partition issue guided by Sections 94, 95 and 96, and that the final decision be filed in court for adoption as an order of the court. Should that fail, the case proceeds to full adjudication before the court.
Entitlement to reliefs and costs
Reliefs of striking out refused; matter referred to Court Annexed Mediation with proceedings stayed; costs of the application to the Plaintiff but in the cause
The applicants failed to meet the Order 2 Rule 15(1) threshold. Applying Article 159(2)(c) of the Constitution and Section 20 of the Environment and Land Court Act, the court referred the dispute to Court Annexed Mediation for resolution by the Land Registrar and stayed proceedings under Section 6 of the Civil Procedure Act pending that outcome, with costs in the cause.
Legal principles established
#- The power to strike out pleadings must be exercised sparingly and only where the pleading is clearly untenable, without embarking on the merits
- On a striking-out application the court examines only the pleadings, not the evidence or prospects of success, unless abuse of process is alleged
- A plaintiff is entitled to pursue an implausible claim unless the defendant demonstrates shortly and conclusively that it is bound to fail or is an abuse of process
Court orders
#- 1.Notice of Motion application dated 4th March 2022 by the 1st, 5th, 6th, 7th, 8th and 12th Defendants/Applicants dismissed with costs
- 2.Matter referred to Court Annexed Mediation to be adjudicated by the Land Registrar in accordance with Sections 94, 95 and 96 of the Land Registration Act, No. 3 of 2012, pursuant to Article 159(2)(c) of the Constitution and Section 20(1) and (2) of the Environment and Land Court Act
- 3.Matter to be mentioned before the Deputy Registrar, Environment and Land Court on 18th January 2024 for directions on the Alternative Justice System referral
- 4.Stay of proceedings under Section 6 of the Civil Procedure Act pending the final decision by the Court Annexed Mediation and the Land Registrar
- 5.Costs to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act, No. 19 of 2011 (Section 20(1) and (2) invoked); application under Section 3A Civil Procedure Act and Order 2 Rule 15(1) Civil Procedure Rules, 2010
- Consolidated with
- Mombasa ELC No. 183 of 2019 (noted in the judgment as consolidated with this suit)
Relief refused
#Striking out of the Plaint and all pleadings filed by the Plaintiff
Applicants failed to discharge the heavy burden under Order 2 Rule 15(1); the Plaint raises a reasonable cause of action and serious questions requiring trial
Costs
Application dismissed with costs to the Plaintiff/Respondent, but the costs to be in the cause as the matter is still ongoing.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That the Notice of Motion application dated 4th March 2022 by the 1st, 5th, 6th, 7th 8th and 12th Defendants/Applicants herein lacks merit and hence it be and is hereby dismissed with costs.
this matter to be referred to the Court Annexed Mediation to have it adjudicated by the Land Registrar in accordance with the provision of Sections 94, 95 and 96 of the land Registration Act, No. 3 of 2012.
That there be a stay of proceedings under the provision of Section 6 of the Civil Procedure Act, Cap. 21 of this case awaiting the nal decision by the Court Annexed Mediation and the Land Registrar thereof.
the power to strike out a pleading which ends in driving a party from the judgment seat should be used very sparingly and only in cases where the pleading is shown to be clearly untenable.
the Defendant/Applicants herein have failed to discharge the heavy burden cast upon them by the provision of Order 2 Rule 15 (1) of demonstrating that the Plainti’s case does not raise a reasonable cause of action
Issues in the judgment
#Costs ordered 'with costs' in order (a) but 'costs to be in cause' in order (e)
Supplementary affidavit dated 7th January 2022 said to respond to a replying affidavit dated 3rd December 2022
Land Registration Act cited inconsistently as No. 3 of 2010 and No. 3 of 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hussein Tareq Abdalla v Dalal Juma Hassan & 15 others", Case Analysis (2023). Civil Suit 210 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22013/eng@2023-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.