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ELCDismissedNot stated in the judgment (suit dated 27th November 2015)· [2018] KEELC 3502 (KLR)

Benedeta Cheruto Mabwai v William Rono (Sued on behalf of the estate of David Kipnegeno Rono) & another [2018] KEELC 3502 (KLR)

Environment and Land Court
18 April 2018
JOJ.M ONYANGO
1,144 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kericho land court threw out a bid to end a land case early, ruling that disputes requiring evidence cannot be decided on a preliminary objection.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho determines a preliminary objection dated 13th March 2018 raised by the defendant against the plaintiff's suit and application of December 2015. The defendant argued that the suit was fatally defective, an abuse of process, and res judicata, because the dispute over land parcel Kericho/Kipsonoi/S.S/513 had been determined by Sotik Land Disputes Tribunal Case No. 13 of 2010, whose award was adopted as a judgment of the lower court on 12th August 2010 and a decree issued, with no judicial review or appeal against that decision. The plaintiff responded that the objection was premature, not anchored on a pleading under Order 2 Rule 4(1), and did not meet the definition of a preliminary objection, citing Mukisa Biscuit and Oraro v Mbaja; further, that he had appealed to the Provincial Appeals Tribunal and the appeal was pending when the Land Disputes Tribunal Act was repealed, entitling him to institute the suit. The court framed one issue: whether the points raised fell within the definition of a preliminary objection. Applying the settled test that a preliminary objection must be a pure point of law not requiring ascertainment of facts or evidence, the court held that the defendant's allegations required both parties to adduce evidence, particularly regarding the adoption of the Tribunal award and the pending provincial appeal. The preliminary objection was dismissed with no order as to costs, and the application dated 8th December 2015 was directed to be fixed for hearing.

Key legal issues

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01

Whether the defendant's points qualify as a preliminary objection

Holding

The objection does not fit the definition because it requires evidence to authenticate factual allegations such as adoption of the Tribunal award and the status of the provincial appeal

Reasoning

The court applied the Mukisa Biscuit test and Oraro v Mbaja, holding that a preliminary objection must be a pure point of law pleaded or arising clearly from the pleadings. The defendant's allegations on res judicata and adoption of the Tribunal award are contested by the plaintiff, who claims a pending provincial appeal, so both parties must adduce evidence before the court can determine the truth.

p. 3

Legal principles established

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  • A preliminary objection must be a pure point of law and cannot be raised where facts must be ascertained or evidence adduced
  • A matter requiring investigation of facts cannot be raised as a preliminary objection

Court orders

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  1. 1.The Preliminary Objection is dismissed with no order as to costs
  2. 2.The application dated 8th December 2015 to be fixed for hearing

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 4(1)
  • Environment and Land ActSection 30
  • Land Disputes Tribunal Act

Cases cited (4)

  • Agnes Mukami and 5 Others V Ngewaji Co. Ltd
    2005 KLR
  • Stephen Onyango Achola & Another V Edward Hongo Sule & Another
    2004 KLR
  • Oraro V Mbaja
    2005 1KLR 141
  • Mukisa Biscuit Manufacturing Company Limited V West End Distributors Ltd
    (1969) E.A 696
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act (section 30 referenced in submissions)

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, "Benedeta Cheruto Mabwai v William Rono (Sued on behalf of the estate of David Kipnegeno Rono) & another [2018] KEELC 3502 (KLR)", Case Analysis (2018). Not stated in the judgment (suit dated 27th November 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3502/eng@2018-04-18

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