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ELCPartially Allowed· [2017] KEELC 3805 (KLR)

Joel Okerosi Ochako v African Independent Pentecostal Church of Africa & 2 others [2017] KEELC 3805 (KLR)

High Court of Kenya (suit property within jurisdiction of Environment and Land Court, Kajiado)
31 August 2017
2,280 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Court dealt together with the Plaintiff's Amended Notice of Motion dated 15th May 2014 seeking a permanent injunction against the Defendants over Plot No.2386/Residential-Noonkopir Trading Centre, Kitengela, and a Preliminary Objection dated 15th September 2015 by the 2nd Defendant, County Government of Kajiado, contending the suit was procedurally defective and disclosed no cause of action against it. Applying Mukisa Biscuit, Quick Enterprises and Nitin Properties, the Court held the objection raised pure points of law but was not merited: procedural non-compliance with Order 3 Rule 2(d), Order 4 Rule 5 and Order 1 Rule 3 was curable, and the Plaintiff should be afforded a full trial. On the motion, guided by Giella v Cassman Brown, the Court found the Plaintiff had not established a prima facie case because the documents showed the parties held distinct parcels (Plot No.2386 versus LR.No.419), and the Plaintiff failed to prove encroachment on his plot. Nor was irreparable loss shown, the plot being capable of valuation with damages an adequate remedy, per Wairimu Mureithi; balance of convenience was therefore not addressed. The preliminary objection and the motion were both dismissed entirely with costs in the cause. The parties were directed to prepare the suit for hearing and comply with Order 11 within 60 days, and the file was ordered transferred forthwith to the Kajiado Environment and Land Court for final hearing and determination.

Key legal issues

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01

Whether the 2nd Defendant's preliminary objection was a proper preliminary objection and merited

Holding

The objection was a proper one (pure points of law) but was not merited; procedural non-compliance was curable and the Plaintiff should be heard at a full trial

Reasoning

The Court applied Mukisa Biscuit and Quick Enterprises to find the objection raised pure points of law capable of disposing of the suit. However, applying Bhamra, the right to be heard is fundamental; non-compliance with Order 3 Rule 2(d), Order 4 Rule 5 and Order 1 Rule 3 was curable by amendment or further documents, and the Plaintiff alleged payment of rates to the 2nd Defendant, giving an arguable claim.

02

Whether the Plaintiff established a prima facie case with probability of success

Holding

No - the documents showed the parties own different and distinct parcels, and the Plaintiff failed to prove the 1st Defendant encroached on his plot

Reasoning

The Plaintiff bore the burden of proving encroachment on Plot No.2386, but the 1st Defendant claimed occupation of LR.No.419, a distinct parcel. Without admission of occupation of Plot No.2386, no prima facie case was established; surveyor evidence was required at trial.

p. 5
03

Whether the Plaintiff would suffer irreparable loss not compensable by damages

Holding

No - the suit plot was capable of valuation and quantification, so damages would be adequate

Reasoning

Apart from an alleged pit-latrine, the Plaintiff had no occupation or development on the plot since purchase in 2007. The property was valued and quantifiable, so the second Giella limb failed and balance of convenience need not be considered.

p. 5

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded are correct; it cannot be raised if any fact has to be ascertained
  • Striking out a suit is a drastic remedy to be invoked only in plain and obvious cases
  • Failure to comply with procedural provisions of the Civil Procedure Rules is not fatal where curable by amendment
  • No injunction should issue where damages would be an adequate remedy

Court orders

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  1. 1.The Notice of Preliminary Objection dated 15th September 2015 by the 2nd Defendant is dismissed entirely with costs in the cause
  2. 2.The Plaintiff's Amended Notice of Motion dated 15th May 2014 is dismissed entirely with costs in the cause
  3. 3.Parties directed to prepare the suit for hearing and comply with Order 11 within 60 days from the date of the ruling
  4. 4.The file to be transferred forthwith to Kajiado, Environment and Land Court for final hearing and determination

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 3 Rule 2(d)
  • Civil Procedure Rules 2010Order 4 Rule 5
  • Civil Procedure Rules 2010Order 1 Rule 3
  • Civil Procedure Rules 2010Order 11

Cases cited (6)

  • Mukisa Biscuit Manufacturing Ltd…Vs…West End Distributors Ltd
    (1969) EA 697
  • Quick Enterprises Ltd…Vs…Kenya Railways Corporation
    Kisumu High Court, Civil Case No.22 of 1999
  • Nitin Properties Ltd…Vs…Jagjit Singh Kalsi & Another
    Civil Appeal No.132 of 1989
  • Avtar Singh Bhamra & Another…Vs….Oriental Commercial Bank
    Kisumu HCCC No.53 of 2004
  • Giella ..Vs…Cassman Brown Co.Ltd
    1973 EA 358
  • Wairimu Mureithi..Vs..City Council of Nairobi
    Civil Appeal No.5 of 1979 (1981) KLR 322
Jurisdiction invoked
Original civil jurisdiction of the High Court; suit property falls within jurisdiction of Kajiado Environment and Land Court

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, "Joel Okerosi Ochako v African Independent Pentecostal Church of Africa & 2 others [2017] KEELC 3805 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3805/eng@2017-08-31

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