Joseph Kipkemoi Kigen v Moses Obiero Oyoko [2016] KEELC 811 (KLR)
The bottom line
#The Environment and Land Court in Eldoret dismissed a buyer's attempt to end a land dispute early, ruling that factual questions about ownership must go to a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the limitation objection could dispose of the suit as a preliminary point
No - whether the deceased obtained proprietary rights in the property requires investigation of fact, so the objection cannot be determined at this stage.
The court observed that neither the plaintiff, the deceased, nor the defendant is the registered proprietor; the deceased died before obtaining the certificate of lease and it is unclear whether he complied with the conditions of the allotment letter. Since these are factual questions requiring investigation, limitation and locus could not be resolved on a preliminary point. The objection was therefore dismissed with costs.
Whether the Environment and Land Court has jurisdiction where the land is registered in the name of a deceased person
Yes - the dispute relates to the use and occupation of land under Article 162 of the Constitution.
The defendant argued that only the High Court (succession court) could entertain a dispute over land registered in a deceased person's name, invoking Section 45 of the Succession Act. The court held that as the dispute relates to the use and occupation of land, it falls squarely within the jurisdiction conferred by Article 162 of the Constitution on this court.
The correct test for striking out pleadings on a preliminary objection
The power must be exercised only in the clearest of cases; a suit must be plainly hopeless and incurable by amendment before summary dismissal.
Relying on Order 2 Rule 15 of the Civil Procedure Rules read with Section 3A of the Civil Procedure Act, and on D.T Dobie & Co. Ltd v Muchina, the court reaffirmed that the striking-out power is strong, should be exercised with extreme caution and sparingly, only in plain and obvious cases. The plaintiff's claim was not so hopeless as to warrant summary dismissal.
Legal principles established
#- A preliminary objection cannot be raised where facts must be ascertained or where the exercise of judicial discretion is sought.
- A suit should only be struck out where it plainly and obviously discloses no cause of action and is incurable by amendment.
- The Environment and Land Court has jurisdiction over disputes relating to the use and occupation of land under Article 162 of the Constitution.
Court orders
#- 1.The preliminary objection is dismissed with costs
- 2.Orders accordingly (suit proceeds)
- Jurisdiction invoked
- Article 162 of the Constitution of Kenya (use and occupation of land)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kipkemoi Kigen v Moses Obiero Oyoko [2016] KEELC 811 (KLR)", Case Analysis (2016). Eldoret Environment and Land Case (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/811/eng@2016-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.