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ELCOtherNot stated in the judgment provided· [2017] KEELC 939 (KLR)

Francis Kiptanui Makiche v Susan Kiplagat [2017] KEELC 939 (KLR)

Environment and Land Court
18 October 2017
AOA. Ombwayo
1,344 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court confirmed that you cannot use a preliminary objection to fight a land dispute that needs facts and evidence to be resolved.

What this practically means

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Executive summary

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The plaintiff sued the defendant seeking an order compelling her unconditionally to avail an access road to a 1½-acre parcel he purchased from her on or about 10.9.2012, forming part of L.R. No. Chepkorio Farm Plot No. 9/710, on which he took possession and developed. He complained that the defendant and her children closed the access road, forcing him to pass through a neighbour's land. The defendant filed a defence asserting the plaintiff never took possession, that the parcel was un-subdivided and registered in the name of a deceased person, that succession had not been completed, and that she lacked capacity to transact. She raised a preliminary objection on grounds including want of locus standi for failure to obtain Letters of Administration over the estate of her late husband, non-existence of the plot, absence of Land Control Board consent, and that the suit was frivolous and defective, with refund of purchase price as the plaintiff's proper remedy. The objection was supported by an undated replying affidavit. Counsel for the defendant cited Gitanga Mwaniki v Annuncita Waithira Kibue on capacity. The court, applying Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd, held that a preliminary objection must be a pure point of law on assumed facts, and that issues of locus standi, possession, the validity of the sale procedure, existence of the parcel and access require evidence by affidavit or viva voce. A suit's frivolousness or defectiveness must be raised by striking-out application, not preliminary objection. The court dismissed the preliminary objection with costs, reserving the substantive dispute for trial.

Key legal issues

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01

Whether a preliminary objection supported by a replying affidavit raising factual matters is competent

Holding

It is not; a preliminary objection must be a pure point of law and issues of fact such as existence of the parcel, possession, and Land Control Board consent require evidence.

Reasoning

The court held that the defendant's preliminary objection was supported by an undated replying affidavit, raising factual issues. Issues of locus standi, possession, validity of the sale and existence of plot 9/710 could not be resolved without examining evidence by affidavit or viva voce. Relying on Mukisa Biscuits, the court found the objection misconceived and dismissed it with costs.

p. 2
02

Whether frivolousness or defectiveness of a suit can be raised by preliminary objection

Holding

No; such an attack must be made by way of an application to strike out, not a preliminary objection.

Reasoning

The court noted that the defendant had not established that the suit was frivolous or defective, and that in any event such an assertion is a matter for a striking-out application. The plea of possession by the plaintiff also could not be addressed through a preliminary objection.

p. 3

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 judicial discretion is involved.
  • A suit can only be declared frivolous or defective through an application to strike out, not through a preliminary objection.

Court orders

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  1. 1.The preliminary objection is dismissed with costs

Authorities

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Legislation

  • Law of Succession ActNot specified (Letters of Administration requirements)

Cases cited (2)

  • Gitanga Mwaniki & another v Annuncita Waithira Kibue (2013)
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited (1969) EA 696
    (1969) EA. 696
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the land dispute; cause of action arising within the court's jurisdiction (as pleaded)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Francis Kiptanui Makiche v Susan Kiplagat [2017] KEELC 939 (KLR)", Case Analysis (2017). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/939/eng@2017-10-18

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