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ELCOtherELC. No. 7 of 2013· [2017] KEELC 3598 (KLR)

Fredrick Idiama Emojong v Seferio Mangeni Manyuru & 2 others [2017] KEELC 3598 (KLR)

High Court of Kenya
25 January 2017
1,254 words in judgment
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The bottom line

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A Kenyan court threw out land defendants' shortcut to dismiss a suit because they never filed a defence and lacked evidence for their consent claim.

What this practically means

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Executive summary

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This ruling by A. K. Kaniaru, J of the Environment and Land Court at Busia disposed of a preliminary objection filed by the defendants on 18 January 2016 seeking dismissal of the plaintiff's suit. The plaintiff claimed that the defendants fraudulently or illegally acquired his land parcel South Teso/Angoromo/7331 and subdivided it into four parcels, and sought reversal of the process and cancellation of the resultant titles. The defendants, who had not filed a defence, objected on two grounds: that the suit was bad in law in situ, and that the plaintiff's claim, being based on a purchase for which no Land Control Board consent was obtained, was vitiated under the Land Control Act. The court applied the Mukisa Biscuits test, holding that a preliminary objection must rest on a pure point of law on admitted or uncontested facts. It held the objection was procedurally defective because it had not first been pleaded in a defence, relying on ACHOLA v HONGO. On the merits of the objection, the court noted that the ruling in Busia HC P&A No. 3 of 2000 had expressly declined to examine the sale transaction, so ownership was not settled; and since the plaintiff held a title carrying a rebuttable presumption of legality, the allegation of missing Land Control Board consent required evidence. The court dismissed the preliminary objection with costs, leaving the suit to proceed to full trial.

Key legal issues

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01

Competency of the preliminary objection without a defence

Holding

The objection was procedurally defective because the defendants never filed a defence in which to plead the point

Reasoning

A preliminary objection meant to dispose of the suit in limine should first be pleaded in the defence with an intimation it would later be raised. The defence alerts the court to which facts are contested or admitted. Following ACHOLA v HONGO, a party who fails to plead a defence cannot base a preliminary objection on an unpleaded issue. The defendants plunged headlong into the objection without this crucial step.

p. 2
02

Whether the objection rests on admitted, uncontested facts

Holding

It does not; the truth of the propositions underpinning the objection is not axiomatic

Reasoning

The defendants asserted ownership was settled by the ruling in Busia HC P&A No. 3 of 2000, but that ruling expressly declined to examine the sale transaction, leaving ownership to the ELC. The assertion of non-compliance with the Land Control Act also requires evidence, since the plaintiff holds a title which carries a rebuttable presumption of legality.

p. 2
03

Whether lack of Land Control Board consent can be a pure point of law

Holding

No; the allegation requires production of evidence

Reasoning

The plaintiff pleads title and a copy is on record; a title attracts a rebuttable presumption of legality. A party alleging crucial legal steps were omitted must avail evidence to prove it. Raising the issue as a preliminary objection improperly excludes such evidence. The defendants must allege and prove the omission.

p. 3

Legal principles established

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  • A preliminary objection can only be raised where facts are uncontested and/or admitted, and must first be pleaded in the defence
  • A party alleging that a title was obtained without Land Control Board consent must allege and prove it by evidence; it cannot be determined on a preliminary objection

Court orders

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  1. 1.The preliminary objection is rejected and dismissed with costs

Authorities

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Legislation

  • Land Control Actconsent requirements
  • Public Authorities Limitation Act

Cases cited (6)

  • MUKISA BISCUITS MANUFACTURING LTD VS WEST END DISTRIBUTORS LTD
    [1969] E.A 696
  • MUIRURI VS KIMEMIA
    [2002] 2 KLR 677
  • NJOYA & 6 others VS ATTORNEY GENERAL & Another
    [2004] 1 KLR 232
  • GITAU VS THUO & 2 others
    [2009] KLR 86
  • REPUBLIC VS PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD & ANOTHER Exparte SLEX SISTEMI Integrati
    [2008] KLR 728
  • ACHOLA & ANOTHER VS HONGO & ANOTHER
    [2004] KLR 462
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (land parcel South Teso/Angoromo/7331)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Fredrick Idiama Emojong v Seferio Mangeni Manyuru & 2 others [2017] KEELC 3598 (KLR)", Case Analysis (2017). ELC. No. 7 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3598/eng@2017-01-25

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