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ELCDismissedNot stated in judgment (Plaint dated 19th July 2017)· [2018] KEELC 3273 (KLR)

Amon Muturi Kiarie v Bei International Limited Trading as Scorpio Villas & 3 others [2018] KEELC 3273 (KLR)

Environment and Land Court
25 May 2018
JOJ.O. Olola
1,638 words in judgment
View original judgmentRead on Kenya Law Watch case
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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 Plaintiff, registered proprietor of Portion No. 10496 Malindi measuring 0.2 hectares, sued alleging that the 1st Defendant's beachfront constructions and surrounding wall encroached on his land and public land at the beach front, and sought declarations of illegality, demolition, closure and rectification of an access road, a permanent injunction, and general damages for trespass. He contended that the 1st Defendant colluded with the 2nd, 3rd and 4th Defendants to obtain approvals without due procedure. The 1st Defendant filed a Notice of Preliminary Objection dated 26th September 2017 arguing that the suit was scandalous, frivolous and vexatious, and fatally defective for offending the Land Titles Act (Repealed) on fixed boundaries and foreshore rights, Article 62(1) of the Constitution, and that the 1st Defendant had no proprietary interest in the suit premises. The court applied the classic Mukisa Biscuits test that a preliminary objection must be a pure point of law argued on assumed facts, and Hassan Nyanje Charo on the need for a settled and crisp point of law. It held each ground required evaluation of evidence: whether the pleadings were vexatious, whether the parcel had fixed boundaries, and who owned the structures were all questions of fact. Citing the Supreme Court's admonition that preliminary objections must be shields, not swords, the court found the objection misconceived, disallowed it, and dismissed it with costs to the Plaintiff. The suit remains to be heard on the merits.

Key legal issues

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01

Whether the ground that the suit is scandalous, frivolous and vexatious is a pure point of law

Holding

It is not; it is a factual issue requiring evidence from both parties and cannot dispose of the suit at a preliminary stage.

Reasoning

The court held that determining whether pleadings are scandalous, frivolous or vexatious requires evaluation of the totality of the evidence led by both sides. Since a preliminary objection must rest on a pure point of law applicable to undisputed facts, a ground demanding factual evaluation is misconceived and cannot sustain the objection.

p. 2
02

Whether the Land Titles Act grounds on fixed boundaries and foreshore rights defeated the suit

Holding

The Plaintiff did not plead that his parcel lacked fixed boundaries; he alleged encroachment on a fixed boundary, and whether the parcel has fixed boundaries is a matter of fact requiring evidence.

Reasoning

The court understood the Plaintiff's case to be that a survey revealed encroachment on part of a fixed boundary, not that the parcel had no fixed boundaries. Whether the land has fixed boundaries within the meaning of the Land Titles Act, and questions of foreshore rights and the 1st Defendant's proprietary interest, can only be resolved on evidence, not on a preliminary objection.

p. 3
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Whether the 1st Defendant's lack of proprietary interest over the suit premises bars the suit

Holding

That ground cannot be a bar; it is the very basis of the Plaintiff's suit and can only be proved true or false upon consideration of the facts and evidence.

Reasoning

The court found the last ground incapable of disposing of the suit at a preliminary stage because the alleged absence of proprietary interest is precisely what the Plaintiff alleges; establishing ownership of the structures requires factual inquiry and evidence, so it fails the test of a preliminary objection as a pure point of law.

p. 3

Legal principles established

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  • A preliminary objection must be founded on a settled and crisp point of law whose application to undisputed facts leads to one conclusion; it cannot depend on ascertaining facts by evidence.
  • A preliminary objection should not be used as a sword to win a case destined to be resolved on the merits.

Court orders

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  1. 1.The 1st Defendant's preliminary objection dated 26th September 2017 and filed on 27th September 2017 is disallowed and dismissed
  2. 2.Costs of the preliminary objection to the Plaintiff

Authorities

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Legislation

  • Land Titles Act (Repealed)Sections 23, 27(1), 27(4), 218(1), 22
  • Land ActSections 23, 27(1), 27(4) (as referred in the objection grounds)
  • Registration of Titles ActNot specified
  • Constitution of KenyaArticle 62(1)

Cases cited (4)

  • Mukisa Biscuits Manufacturing Company Ltd –vs- West End Distributors
    (1969) EA 696
  • Hassan Nyanje Charo –vs- Khatib Mwashetani & 3 Others
    Civil Application No. 14 of (2014) eKLR
  • Transcend Media Group Ltd –vs- Independent Electoral & Boundaries Commission
    (2015) eKLR
  • Independent Electoral Boundaries Commission –vs- Jane Cheperenger & 2 Others
    (2015) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the land dispute (Plaint filed in the Court); no specific constitutional or statutory provision invoked in the judgment

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, "Amon Muturi Kiarie v Bei International Limited Trading as Scorpio Villas & 3 others [2018] KEELC 3273 (KLR)", Case Analysis (2018). Not stated in judgment (Plaint dated 19th July 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3273/eng@2018-05-25

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