Anthony Wanjala Milimo v Timothy Wafula Walukana [2017] KEELC 2608 (KLR)
The bottom line
#The Kitale Environment and Land Court dismissed a landowner's attempt to block a neighbour's access-road claim, awarding costs to the plaintiff.
What this practically means
#Executive summary
#Key legal issues
#Whether the claim was for a public road requiring Attorney General involvement
The claim is for restoration of a private access road arising from a contract of sale of land, not a public road, so the Attorney General's consent is unnecessary
The court examined the plaint and statement, finding the plaintiff only sought restoration of the access road leading to his home, which came into existence through the 1990 contract for sale of land between the parties. The plaint did not plead a public right of way. The first limb of the objection therefore failed.
Whether failure to register an easement under Section 38(2) of the Limitation of Actions Act defeats the claim
The objection was not a true preliminary objection because it required evidence of whether an easement had been registered
Applying the Mukisa Biscuit test, the court held that ascertainment of registration of an easement over the burdened land would require oral or documentary evidence. A point dependent on such factual inquiry cannot be raised as a preliminary objection, so the second limb failed.
Whether the suit should have been instituted by originating summons under Order 37 Rule 8 of the Civil Procedure Rules
Order 37 Rule 8 is inapplicable because the Registered Land Act under which such applications were made has been repealed
The defendant's third limb assumed the plaintiff was claiming an easement and that proceedings should have been by originating summons under the Registered Land Act. Since that Act was repealed long before the suit was filed, no application can be founded on it. This ground alone warranted dismissal of the objection.
Legal principles established
#- A preliminary objection must be a pure point of law that does not require ascertainment of facts or exercise of judicial discretion
- No application can be brought under a repealed statute; Order 37 Rule 8 premised on the Registered Land Act is unavailable after its repeal
Court orders
#- 1.The preliminary objection dated 3rd March 2016/2017 is dismissed with costs to the plaintiff
- Jurisdiction invoked
- Original civil jurisdiction over land claims (easement/right of way dispute); preliminary objection under the Civil Procedure Act, the Civil Procedure Rules 2010 and the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anthony Wanjala Milimo v Timothy Wafula Walukana [2017] KEELC 2608 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2608/eng@2017-04-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.