Joel Okerosi Ochako v African Independent Pentecostal Church of Africa & 2 others [2017] KEELC 3805 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd Defendant's preliminary objection was a proper preliminary objection and merited
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
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.
Whether the Plaintiff established a prima facie case with probability of success
No - the documents showed the parties own different and distinct parcels, and the Plaintiff failed to prove the 1st Defendant encroached on his plot
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.
Whether the Plaintiff would suffer irreparable loss not compensable by damages
No - the suit plot was capable of valuation and quantification, so damages would be adequate
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.
Legal principles established
#- 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
#- 1.The Notice of Preliminary Objection dated 15th September 2015 by the 2nd Defendant is dismissed entirely with costs in the cause
- 2.The Plaintiff's Amended Notice of Motion dated 15th May 2014 is dismissed entirely with costs in the cause
- 3.Parties directed to prepare the suit for hearing and comply with Order 11 within 60 days from the date of the ruling
- 4.The file to be transferred forthwith to Kajiado, Environment and Land Court for final hearing and determination
- Jurisdiction invoked
- Original civil jurisdiction of the High Court; suit property falls within jurisdiction of Kajiado Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.