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ELCDismissedNot stated in the judgment· [2016] KEELC 1089 (KLR)

David Kinisu Sifuna v Marriane Eyase Kisanji & 2 others [2016] KEELC 1089 (KLR)

Environment and Land Court of Kenya
29 February 2016
1,078 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court dismissed a plaintiff's attempt to block defendants from being heard, confirming courts will not punish unproven contempt allegations.

What this practically means

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Executive summary

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Before the Environment and Land Court at Kitale, the first and second defendants had applied for extension of time to enter appearance and file defence. The plaintiff raised a preliminary objection contending that the defendants were in contempt of court and should not be heard unless they purged the contempt; that they were not registered owners of the suit land; and that their application was incurably defective. Counsel for the plaintiff (Mr. Pukah) also argued that the contempt application should take precedence and that the court lacked jurisdiction because the defendants had allegedly appealed to the Court of Appeal from the ruling of 14.10.2015. He relied on the Econet Wireless High Court decision and a Kitale ELC decision. Counsel for the defendants (M/S Arunga) opposed, noting contempt had not been established and no written authority is required for swearing an affidavit. Applying the Mukisa Biscuit test as stated by Sir Charles Newbold P, the court held that none of the grounds qualified as a preliminary objection: contempt and ownership were matters of fact to be ascertained, and the relief sought was discretionary. The jurisdictional ground failed because it was the third defendant, not the applicants, who had appealed, and the Kitale ELC authority was distinguishable. The court deprecated the improper use of preliminary objections as a device causing delay and costs, dismissed the preliminary objection, and awarded costs to the first and second defendants, reserving the substantive application for hearing in the normal manner.

Key legal issues

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01

Whether the plaintiff's grounds constituted a valid preliminary objection

Holding

The preliminary objection lacked merit; the grounds required ascertainment of facts and exercise of discretion and should have been argued in the normal manner.

Reasoning

Applying the Mukisa Biscuit test, the court found that the issues of contempt, ownership of the suit land, and the relief sought all required ascertainment of facts or exercise of judicial discretion, which cannot be raised as preliminary objections. The jurisdictional point was not raised in the filed grounds and was factually mistaken. The court deprecated the improper practice as it delays cases and escalates costs.

p. 2
02

Whether alleged contempt justified denying the defendants audience

Holding

No; contempt must first be established before a party can be denied audience.

Reasoning

The court held that whether the first and second defendants were in contempt of any court order was a matter requiring ascertainment. Until that is established, they cannot be denied the chance to be heard, and their application seeking discretionary relief cannot be defeated through a preliminary objection.

p. 2
03

Whether the court lacked jurisdiction due to an appeal against the ruling of 14.10.2015

Holding

The objection failed because the appeal was preferred by the third defendant, not the applicants.

Reasoning

The plaintiff argued that an appeal to the Court of Appeal from the ruling of 14.10.2015 ousting the court's jurisdiction. The court found as a fact that no appeal had been preferred by the first and second defendants; it was the third defendant who had appealed. The Kitale ELC decision cited was also distinguishable as it dealt with stay of execution and review, a different issue.

p. 2

Legal principles established

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  • A preliminary objection must raise a pure point of law on assumed facts; it cannot be raised where facts must be ascertained or where the court's discretion is sought.
  • A party cannot be denied audience on an unascertained allegation of contempt.

Court orders

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  1. 1.The Preliminary Objection is dismissed
  2. 2.Costs of the Preliminary Objection awarded to the first and second defendants

Authorities

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Cases cited (3)

  • Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors
    (1969) E.A 696
  • Econet Wireless Kenya Limited -vs- The Minister for Information & Communication of Kenya & Another
    Nairobi High Court Misc. Application No. 1640 of 2003
  • Jane Anyona Omutsani -vs- Nasibi Aore
    Kitale Environment and Land Court Case No. 86 of 2012
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; no specific constitutional or statutory provision cited

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, "David Kinisu Sifuna v Marriane Eyase Kisanji & 2 others [2016] KEELC 1089 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1089/eng@2016-02-29

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