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Court of AppealAllowedCivil Appeal No. 136 of 2009· [2015] KECA 338 (KLR)

Sarah Wanjiku Mutu & 2 others v Philomena Njambi Mutu [2015] KECA 338 (KLR)

Court of Appeal of Kenya
16 October 2015
EGE. M. GithinjiAVAlnashir VisramJMJ. Mohammed
1,395 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a preliminary objection can only be a pure point of law, and judges cannot dig up their own evidence to decide one.

What this practically means

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Executive summary

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The appellants claimed portions of land parcel Ndarugu/Gacharage/490 by adverse possession through an originating summons, which Osiemo, J. directed be treated as a plaint with the replying affidavit as defence. The respondent raised grounds of objection, including that the suit was res judicata given several prior cases over the land, and her counsel pursued a preliminary objection at the hearing. Ang'awa, J., apparently on her own motion, ordered various court files produced, and on 6th June 2007 upheld the preliminary objection and dismissed the suit, finding that Succession Cause 983/1995 had finalised most disputes. On appeal, the Court of Appeal applied the Mukisa Biscuit definition of a preliminary objection as a pure point of law that cannot be raised where facts must be ascertained. The court held the objection should have been decided on the parties' own material; the respondent had not annexed the proceedings and judgments in the succession causes on which res judicata depended. The learned judge erred in calling for additional evidence, failed to record her findings from the files, and did not give counsel an opportunity to comment on their contents. The court also noted there was no prior determination of the adverse possession claim, which required oral evidence. The appeal was allowed, the High Court ruling set aside, and the appellants awarded the costs of the appeal.

Key legal issues

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01

Whether the res judicata objection was a proper preliminary point of law

Holding

No. The objection could only be argued on the assumption that the facts in the originating summons and supporting affidavit were correct, and the proceedings and judgments relied on were not annexed; facts had to be ascertained, so it was not a pure point of law.

Reasoning

Applying Mukisa Biscuit, the court held a preliminary objection cannot be raised if facts must be ascertained. The respondent's replying affidavit listed prior cases but did not annex the proceedings and judgments in the succession causes relied on for res judicata. The objection therefore required fact-finding beyond the pleaded material and was improperly raised.

p. 3
02

Whether the trial judge could call for court files on her own motion and rely on them

Holding

No. The judge erred by sourcing additional evidence suo motu and relying on it, without recording her findings from the files or giving counsel an opportunity to comment.

Reasoning

The judge, on her own motion, ordered various court files produced and from their records concluded that Succession Cause 983/1995 had finalised most disputes. The court held she should have decided the objection on the parties' material; her factual findings from the files were unrecorded, and the advocates were not heard on the files' contents, vitiating the ruling.

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, and cannot be raised where any fact has to be ascertained or judicial discretion is sought.
  • A preliminary objection must be decided only on the material placed before the court by the parties; a judge cannot call for additional evidence to ascertain facts and rely on it to uphold such an objection.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The Ruling of the High Court is set aside
  3. 3.The appellants are given the costs of this appeal

Authorities

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Cases cited (1)

  • Mukisa Biscuit Co. Limited v West End Distributors Limited
    [1969] EA 696
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 462 of 2005
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal's statutory appellate powers (appeal from the High Court ruling/dismissal); no specific constitutional or statutory provision is cited in the judgment.

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, "Sarah Wanjiku Mutu & 2 others v Philomena Njambi Mutu [2015] KECA 338 (KLR)", Case Analysis (2015). Civil Appeal No. 136 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/338/eng@2015-10-16

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