JUDGMENT OF THE COURT
The issue that falls for our decision in this interlocutory appeal is whether High Court Judge Muchelule, J erred in rejecting the appellant’s application dated 20th August, 2009 which sought to strike out the respondents plaint for the reason, in relevant part, of the suit being unenforceable for absence of a contract as envisaged by Section 3(3) of the Law of Contract Act, Cap 23, Laws of Kenya.
After hearing the opposing sides on that application, the learned Judge in a necessarily brief and considered ruling dismissed it. In doing so, he in particular delivered himself as follows;
“The second challenge to the suit was that there was no contract between the plaintiff and the 2nd defendant in terms of section 3(3) of the Law of Contract Act. The plaintiff says there was a contract in the documents he annexed to the application filed with the suit seeking temporary injunction. In the plaint the plaintiff alleged to have bought various plots from the 2nd defendant. …