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ELCDismissedNot stated in judgment· [2014] KEELC 35 (KLR)

Mukei Mbolonzi v Samuel Mwangi Mwaura & 2 others [2014] KEELC 35 (KLR)

High Court of Kenya
8 December 2014
PNP. Nyamweya
1,110 words in judgment
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The bottom line

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The High Court of Kenya dismissed a preliminary objection to a land sale claim, holding that unattested land contracts can still be saved through the court's discretion under section 38(2) of the Land Act.

What this practically means

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Executive summary

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The Plaintiff moved the court by Notice of Motion dated 6th November 2012 seeking a temporary injunction to restrain the Defendants from interfering with her quiet use and enjoyment of plot No. 11, a subdivision of LR No. 7958/12 at Kahawa, Nairobi, and from trespassing, surveying, demarcating or issuing titles over the subdivision scheme. She claimed she purchased the plot from the 2nd and 3rd Defendants in 2009 for Kshs.2.6 million, that no sale agreement or title was issued to her, and that the 1st Defendant, who scouted for the plot, now falsely claims co-ownership. The 2nd and 3rd Defendants filed a preliminary objection dated 21st November 2012 contending that the suit offended section 38(1) of the Land Act, because the contracts attached - dated 6th August 2009 and 13th October 2009 - were not attested by witnesses as required for suits founded on contracts for the disposition of interests in land. The Plaintiff opposed, invoking Article 159(2)(d) of the Constitution and arguing substantive justice should prevail over procedural technicalities. Applying the Mukisa Biscuit test, the court held the objection did not raise a pure point of law: the Plaintiff was party to the 13th October 2009 written agreement, and the effect of its lack of attestation was a matter for the court's discretion under section 38(2) of the Land Act. The preliminary objection was dismissed with costs to be borne by the 2nd and 3rd Defendants.

Key legal issues

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01

Whether the preliminary objection based on section 38(1) of the Land Act raises a pure point of law

Holding

It does not; determining the effect of lack of attestation requires the exercise of the court's discretion under section 38(2), so the objection fails.

Reasoning

Applying Mukisa Biscuit, the court held that a preliminary objection cannot be raised where facts must be ascertained or discretion exercised. Although the 6th August 2009 contract was not the Plaintiff's, the 13th October 2009 contract was in writing and she was a party. The legal effect of its lack of attestation was a matter for the court's discretion under section 38(2) of the Land Act, including permitting amendment. Hence the objection was not a pure point of law and was dismissed with costs.

p. 3

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained or if judicial discretion is sought

Court orders

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  1. 1.The 2nd and 3rd Defendants' Preliminary Objection dated 21st November 2012 is dismissed as it does not raise a pure point of law and has no merit
  2. 2.The 2nd and 3rd Defendants shall meet the costs of the said Preliminary Objection

Authorities

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Legislation

  • Land Actsection 38(1)
  • Land Actsection 38(2)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (1)

  • Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd
    (1969) EA 696
Jurisdiction invoked
Original civil jurisdiction of the High Court over a land dispute (interlocutory application in a suit)

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, "Mukei Mbolonzi v Samuel Mwangi Mwaura & 2 others [2014] KEELC 35 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/35/eng@2014-12-08

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