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ELCDismissedELC No. 154 of 2017· [2018] KEELC 2220 (KLR)

Consoline Atieno Ononia v Samwel Mulera Lukiri [2018] KEELC 2220 (KLR)

Environment and Land Court
24 July 2018
AKA. K. Kaniaru
582 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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This ruling of the Environment and Land Court at Busia (A. K. Kaniaru, J) determined a preliminary objection dated 17/5/2018 filed by the defendant, Samuel Mulera Lukiri, in a suit by the plaintiff, Consoline Atieno Ononia, concerning land parcel Samia/Luchululo-Bukhulungu/1596. The objection was two-fold: first, that the plaintiff was pursuing multiple suits against the defendant (CMCC No. 331 of 2015, HCC Misc. Appl. No. 22 of 2017 and ELC No. 154 of 2017) without clarity on which suit she was pursuing; and second, that the defendant's authority under a power of attorney granted by Musa Oundo Musalama had ceased upon that person's death on 25/12/2011. The plaintiff responded by replying affidavit and the defendant by further affidavit, with rival arguments heard on 24/7/2018. The court held that the objection was procedurally defective because the defendant had not first raised the issues in his defence, which is where a suit is responded to and where an intended preliminary objection should be contextualized. It further held that the objection failed the requirement that a preliminary objection be a pure point of law, applied on the assumption that all facts pleaded by the other side are correct; here the defendant disputed all material facts and the court was referred to documents with contested contents. Characterizing the objection as a misguided adventure, the court dismissed it with costs to the plaintiff, noting a 30-day right of appeal.

Key legal issues

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01

Procedural propriety of the preliminary objection

Holding

The preliminary objection was improperly raised because the defendant failed to raise the issue in his defence before filing the notice

Reasoning

The court held that a preliminary objection must first be pleaded in the defence as an attack on the suit, so that it becomes contextualized in the pleadings. The defendant had filed a defence contesting all material aspects of the claim but never raised the objection there, an omission the court characterized as serious. Consequently the notice, though filed, was procedurally defective.

p. 1
02

Whether the objection was a pure point of law

Holding

The objection was not a pure point of law since it depended on contested facts and documents

Reasoning

Applying Mukisa Biscuit-derived principles as expressed in Muiruri v Kimemia, the court held that a preliminary objection must assume the correctness of facts pleaded by the other side. Here the defendant disputed all material facts, and counsel referred the court to documents whose contents were contested, so the objection failed the pure-point-of-law test.

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Legal principles established

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  • An issue intended to be raised as a preliminary objection should first be raised in the defence so that it is contextualized in the pleadings
  • A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained or where judicial discretion is sought

Court orders

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  1. 1.The preliminary objection is dismissed
  2. 2.Costs of the preliminary objection awarded to the Plaintiff
  3. 3.Right of appeal - 30 days

Authorities

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Cases cited (1)

  • MUIRURI Vs KIMEMIA
    [2002] 2 KLR 677
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - not expressly cited in the ruling

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, "Consoline Atieno Ononia v Samwel Mulera Lukiri [2018] KEELC 2220 (KLR)", Case Analysis (2018). ELC No. 154 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2220/eng@2018-07-24

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