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ELCDismissedNot stated in judgment· [2017] KEELC 126 (KLR)

Henry Onyango Oketch v Jenifer Owuor [2017] KEELC 126 (KLR)

Environment and Land Court
1 August 2017
MOM.C. Oundo
1,101 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that land disputes needing evidence at trial cannot be ended early through preliminary objections.

What this practically means

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Executive summary

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The court dismissed a preliminary objection dated 24th May 2017 raised by the defendant through the firm of Behan and Okero Advocates. The defendant argued, first, that under Section 18(2) of the Land Registration Act No. 3 of 2012 the court lacked jurisdiction because disputes on boundaries of registered land must first be determined by the Land Registrar, and second, that the suit was misconceived, scandalous, frivolous, vexatious and an abuse of process. Counsel relied on Wills Ocholla v Mary Ndege, the Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors definition of a preliminary objection, and Amos Mpeshe & 3 others v Salau Ole Sokon Modo, pointing to the plaintiff's averments of encroachment, interference with boundary lines of parcel North Gem/Marenyo/1544, and the prayer for determination of boundary lines. Counsel for the plaintiff countered that the defendant had moved onto the plaintiff's land, that there was no boundary dispute between two parcels, and that the defendant's authorities concerned adjoining parcels. The court, per M.C. Oundo, Environment & Land Judge, held that a perusal of the pleadings could not establish with certainty whether the suit was for trespass or a boundary dispute; such disputes turn on technical and historical matters resolvable only by viva voce evidence at a full trial. The objection therefore failed the Mukisa Biscuit principles and was dismissed with costs to the plaintiff on 1st August 2017 at Kisumu.

Key legal issues

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01

Whether Section 18(2) of the Land Registration Act ousts the court's jurisdiction over this suit

Holding

The objection failed because the pleadings do not establish with certainty that the suit is a boundary dispute within Section 18(2); that question requires evidence at trial

Reasoning

The court held that a mere perusal of the pleadings could not conclusively classify the suit as a boundary dispute rather than trespass. Boundary/fence line disputes are technical and turn on historical treatment of the properties. Since facts would need to be ascertained, the objection did not meet the Mukisa Biscuit standard and the suit was not premature.

p. 2
02

Whether the Preliminary Objection was a proper preliminary objection in law

Holding

It was not, because it required ascertainment of facts

Reasoning

Applying the Mukisa Biscuit test, a preliminary objection must be a pure point of law argued on the assumption that the pleaded facts are correct. Where the classification of the dispute (trespass versus boundary dispute) depends on evidence, the objection is improper. The court found the objection did not satisfy these principles and dismissed it.

p. 2

Legal principles established

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  • A preliminary objection must raise a pure point of law on assumed facts and cannot be raised where facts must be ascertained or judicial discretion exercised
  • Where it cannot be said with certainty on the pleadings whether a suit is one for trespass or a boundary dispute, the question must be resolved at a full trial, not on a preliminary objection

Court orders

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  1. 1.The Preliminary Objection dated 24th May 2017 is dismissed
  2. 2.Costs of the Preliminary Objection awarded to the Plaintiff

Authorities

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Legislation

  • Land Registration ActSection 18(2)

Cases cited (3)

  • Wills Ocholla v Mary Ndege
    [2016] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors ltd
    (1969) EA 696
  • Amos Mpeshe & 3 others v Salau Ole Sokon Modo
    [2015] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction; objection grounded on Section 18(2) of the Land Registration Act No. 3 of 2012

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, "Henry Onyango Oketch v Jenifer Owuor [2017] KEELC 126 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/126/eng@2017-08-01

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