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Court of AppealDismissedCivil Appeal No 229 of 2012· [2013] KECA 93 (KLR)

Johnson Githaiga Nderitu & 4 others v Nicholsa Nderitu Muita & 3 others [2013] KECA 93 (KLR)

Court of Appeal
10 December 2013
AVAlnashir VisramMartha Karambu KoomeMartha KoomeOTOtieno-Odek
1,990 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot kill a lawsuit early with a preliminary objection when the facts are disputed — such cases must go to full trial.

What this practically means

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Executive summary

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This was an interlocutory appeal to the Court of Appeal at Nyeri against a ruling of the High Court (Makhandia, J.) delivered on 7th November 2008 in HCCC No. 57 of 2008, dismissing a preliminary objection in which the appellants had sought the dismissal of the respondents' suit. The dispute concerned family land: the 1st respondent, registered proprietor of land parcel Nyeri/Gatarakwa/897, had granted a power of attorney to his elder son (the 1st appellant), who allegedly sub-divided and distributed the land to family members contrary to the donor's wishes. The respondents pleaded fraud and abuse of the power of attorney. Before the High Court, the appellants objected that the registered proprietorship had vested in the donee under Sections 27 and 28 of the Registered Land Act and that the other plaintiffs lacked locus standi. The High Court dismissed the objection, holding that the extent of the power of attorney and the fraud allegations required evidence, though it erroneously also cited the absence of a defence. The Court of Appeal found that a defence had in fact been filed and that the Judge erred on that ground, but upheld the dismissal of the preliminary objection on the merits. Applying the Mukhisa Biscuit test, Nitia Properties, and the overriding objective, the Court held that the pleadings raised triable issues of fact - fraud, abuse of the power of attorney, locus standi and bona fide acquisition - that could not be summarily disposed of. Article 159(d) of the Constitution and the rules of natural justice required that parties be heard. The appeal was dismissed with costs.

Key legal issues

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01

Whether a preliminary objection can be sustained where the facts are disputed

Holding

No. Triable issues of fact raised on the pleadings preclude summary dismissal by way of preliminary objection; the facts as alleged in the plaint must be deemed correct for a preliminary point to succeed.

Reasoning

Applying Mukhisa Biscuit and Nitia Properties, the Court held that where the plaint alleges fraud in the exercise of a power of attorney and the defence denies the averments, the nature and extent of the power donated, whether it was abused, and whether the acquisition was bona fide are all matters requiring evidence. Such disputed facts cannot be resolved on a preliminary objection.

p. 3
02

Whether the High Court judge erred in relying on the alleged absence of a statement of defence

Holding

Yes. The Court found on the record that a Statement of Defence had been duly filed, so the learned Judge's citation of that ground was an error, but it did not alter the outcome since the other reasons supporting dismissal of the objection stood.

Reasoning

The Court perused the record of appeal and was satisfied a defence dated 24th June 2008 had been filed. The erroneous ground was set aside, but the Court went on to evaluate and uphold the remaining reasons for dismissing the preliminary objection, namely the existence of triable issues.

p. 3
03

The duty of courts to favour substantive justice over technicalities

Holding

Striking out a plaint by way of preliminary objection, thereby condemning parties unheard, is against Article 159(d) of the Constitution, the rules of natural justice and the overriding objective in Sections 3A and 3B of the Appellate Jurisdiction Act.

Reasoning

The Court invoked the constitutional command to administer substantive justice and audi alterem partem, together with the overriding objective, adopting the cautionary dicta in DT Dobie that a court must act very cautiously and consider all facts before dismissing a case without embarking on a trial.

p. 4

Legal principles established

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  • A preliminary objection can only succeed where the facts as alleged are not disputed; where the facts alleged in the plaint are contested, the claim cannot be summarily dismissed by way of preliminary objection
  • Courts must administer substantive justice and not unduly favour technicality or procedure, per Article 159(d) of the Constitution, and no person may be condemned unheard

Court orders

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  1. 1.The appeal is dismissed with costs
  2. 2.The ruling of the High Court dismissing the preliminary objection is upheld

Authorities

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Legislation

  • Constitution of KenyaArticle 159(d)
  • Registered Land ActSections 27 and 28
  • Appellate Jurisdiction ActSections 3A and 3B

Cases cited (5)

  • Mukhisa Biscuit Manufacturing Co. Ltd. – v – West End Distributors Limited
    (1969) EA 696
  • Nitia Properties Limited – v – Jagjit Singh Kalsi & Another
    C.A. No. 132 of 1937
  • Douglas Mbugua Mungai - vs - Harrison Munyi
    Civil Application No. Nai. 167 of 2010
  • Stephen Boro Gitiha - vs - Family Finance Building Society & 3 Others
    Civil Application No. Nai. 263 of 2009
  • DT Dobie & Co. (Kenya) Ltd. - vs - Muchina
    Civil Appeal 37 of 1978
On appeal from
High Court of Kenya at Nyeri
HCCC No. 57 of 2008
Jurisdiction invoked
First appellate jurisdiction over an interlocutory appeal against the Ruling of the High Court at Nyeri (Makhandia, J.) delivered on 7th November 2008 in HCCC No. 57 of 2008

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Johnson Githaiga Nderitu & 4 others v Nicholsa Nderitu Muita & 3 others [2013] KECA 93 (KLR)", Case Analysis (2013). Civil Appeal No 229 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/93/eng@2013-12-10

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