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ELCOtherNot stated in the extract· [2017] KEELC 3824 (KLR)

Gilidi Cheruiyot Kipkoech v Nathan Kipchumba Lagat & 2 others [2017] KEELC 3824 (KLR)

Environment and Land Court (or successor of the High Court at Kitale - not expressly stated)
24 August 2017
MNMwangi Njoroge
913 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner's eviction application was struck out because it cited the wrong land parcel number, costing them the case and paying the other side's legal fees.

What this practically means

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Executive summary

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The 2nd defendant raised a preliminary objection dated 13/3/2017 against the plaintiff's Notice of Motion dated 6/3/2017, which sought the eviction of the 2nd defendant from parcel Kaplamai/Sirende/Koitogos/28, police security for auctioneers, and costs. The objection's sole ground was that the motion concerned a parcel not the subject of the suit and belonging to a person not party to the proceedings, rendering the application fatally defective. The plaintiff countered that the objection was not a true preliminary objection because determination would require examination of facts by way of affidavit. The court framed a single issue: whether the notice raised a true preliminary objection. Applying Mukisa Biscuits Manufacturing Company Ltd v West End Distributors (1969) EA 696, the court held that a preliminary objection raises a pure point of law, that examining pleadings (and the judgment, which forms part of the record) is permissible, and that a preliminary point may arise by implication from the pleadings. The court's judgment of 16/9/2015 showed the suit parcel was LR No. Kaplamai/Sirende/Koitogos/28, while the plaintiff's title deed read LR No. Kaplamai/Sirende Block 4/Koitogos/28, and the application of 6/3/2017 cited a number at variance with the judgment. Since execution must be confined to the land in the judgment, the court upheld the preliminary objection and struck out the plaintiff's application with costs to the 2nd defendant. The 2nd defendant's separate application for stay and review of the 16/9/2015 judgment was noted but not determined in this ruling.

Key legal issues

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01

Whether the Notice dated 13/3/2017 raises a true preliminary objection

Holding

Yes - though ascertainment of the land reference number required reference to the pleadings and judgment, examination of pleadings is permitted, and the objection was upheld

Reasoning

The court applied the Mukisa Biscuits test, holding that a preliminary objection may arise by implication from the pleadings and that examining pleadings and even the court's own judgment on record does not disqualify the objection. On the record, the judgment showed the suit parcel, so the mismatch with the number cited in the execution application was apparent.

p. 2
02

Whether an execution application citing a land reference number different from that in the decree is competent

Holding

No - the parcel number is critical in execution proceedings and execution must be confined to the land in the judgment; the misdescription was fatal

Reasoning

The judgment of 16/9/2015 concerned LR No. Kaplamai/Sirende/Koitogos/28 (title deed reading Kaplamai/Sirende Block 4/Koitogos/28), while the application dated 6/3/2017 cited a number at variance with it. Since execution must respect only the land in the judgment, the defective application was struck out.

p. 2

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained or if judicial discretion is sought
  • Examination of pleadings is permitted in the determination of preliminary objections; a preliminary point may arise by implication from the pleadings
  • Execution must be carried out only in respect of the land in the judgment; a decree permits no other execution

Court orders

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  1. 1.The preliminary objection raised vide the Notice dated 13/3/2017 is upheld
  2. 2.The plaintiff's Application dated 6th March 2017 is struck out with costs to the 2nd defendant

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 45 (r.5)

Cases cited (1)

  • Mukisa Biscuits Manufacturing Company Ltd vs West End Distributors
    (1969) EA 696
Jurisdiction invoked
Original civil jurisdiction (suit land dispute); no specific provision invoked in the extract

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, "Gilidi Cheruiyot Kipkoech v Nathan Kipchumba Lagat & 2 others [2017] KEELC 3824 (KLR)", Case Analysis (2017). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3824/eng@2017-08-24

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