Fredrick Idiama Emojong v Seferio Mangeni Manyuru & 2 others [2017] KEELC 3598 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Competency of the preliminary objection without a defence
The objection was procedurally defective because the defendants never filed a defence in which to plead the point
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.
Whether the objection rests on admitted, uncontested facts
It does not; the truth of the propositions underpinning the objection is not axiomatic
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.
Whether lack of Land Control Board consent can be a pure point of law
No; the allegation requires production of evidence
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.
Legal principles established
#- 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
#- 1.The preliminary objection is rejected and dismissed with costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act (land parcel South Teso/Angoromo/7331)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Andrew Katan Mwaeba v Equity Bank Kenya Limited & 3 others [2019] KEELC 1084 (KLR)[2019] KEELC 1084 (KLR)2 Oct 2019
- Justine Nguma Kitonyo v Teachers Service Commission [2018] KEELRC 2097 (KLR)[2018] KEELRC 2097 (KLR)12 Apr 2018followed
Cite this brief
#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.