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ELCOtherNot stated in the judgment· [2018] KEELC 4514 (KLR)

Reuben Kipkoech Ngetich v Eunice Chepkosgey Ngetich, District Land Registrar & Attorney General (Environment & Land Case 4 of 2017) [2018] KEELC 4514 (KLR)

Environment and Land Court
24 January 2018
1,418 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to strike out a land suit over missing paperwork, giving the plaintiff a chance to fix his pleadings instead of losing outright.

What this practically means

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Executive summary

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The 1st Defendant filed a Preliminary Objection dated 28th March 2017 seeking the striking out of the Plaintiff's suit on grounds that the Plaintiff lacked locus standi, that the suit was an abuse of process, and that it disclosed no cause of action. The Plaintiff, claiming to be a grandson and beneficiary of the estate of Kipsanga Arap Tuei (Deceased), had sought cancellation of the 1st Defendant's registration as proprietor of land parcel Kericho/Ndaraweta/901 and reversion of the title to the deceased's estate. The plaint and reply made no mention of any Grant of Letters of Administration; only in submissions did the Plaintiff assert he held a valid Limited Grant. The court framed two issues: whether the Plaintiff had locus standi and whether the plaint should be struck out. Relying on Mukisa Biscuits v West End Distributors, the court held locus standi is a point of law properly raised by preliminary objection. It found that at the time of filing the suit the Plaintiff had not demonstrated locus standi, and his reliance on a grant through submissions amounted to introducing evidence from the bar, contrary to the rule that parties are bound by their pleadings. However, invoking Order 2 Rule 6(2) of the Civil Procedure Rules, and noting the Plaintiff's application for leave to amend the plaint and the apparent existence of a Limited Grant, the court held it would not serve the interests of justice to strike out the plaint. The Preliminary Objection was disallowed with no order as to costs.

Key legal issues

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01

Whether the plaintiff has locus standi to file the suit

Holding

At the time of instituting the suit the plaintiff did not demonstrate locus standi, as the plaint made no mention of a Grant of Letters of Administration; the grant was introduced only by way of submissions

Reasoning

The court held that locus standi is a point of law capable of being raised by preliminary objection. However, the plaint did not plead the plaintiff's legal status vis-à-vis the deceased's estate. Even after the defence raised the issue, the plaintiff did not amend his pleadings; his assertion of a Limited Grant in submissions amounted to introducing evidence from the bar, which the court disregarded per the rule that parties are bound by their pleadings.

p. 2
02

Whether the plaint should be struck out for being incompetent

Holding

The Preliminary Objection was disallowed because the plaintiff appeared to have a Limited Grant and had applied for leave to amend his plaint

Reasoning

Although locus standi was not demonstrated in the plaint, Order 2 Rule 6(2) of the Civil Procedure Rules permits a party to amend pleadings to plead allegations in the alternative. Since it had come to the court's attention, albeit irregularly, that the plaintiff held a Limited Grant, and noting his pending amendment application, striking out would not serve the interests of justice.

p. 3

Legal principles established

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  • A preliminary objection is 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
  • Parties are bound by their pleadings; evidence at variance with the pleadings must be disregarded

Court orders

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  1. 1.The 1st Defendant's Preliminary Objection dated 28th March, 2017 is disallowed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActOrder 2 rule 6
  • Law of Succession ActNot specified

Cases cited (4)

  • Mukisa Biscuits V West End Distributors Ltd
    (1969) E.A 696
  • Independent and Boundaries Commission & Another V Mutinda Mule & 3 Others
    (2014) eKLR
  • Adetoun Oladeji NIG Limited V Nigeria Breweries PLC
    SC 9 of 2002
  • Mary Ngaru V Family Bank Ltd & 2 Others
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act (suit concerning land parcel Kericho/Ndaraweta/901); preliminary objection under civil procedure law

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, "Reuben Kipkoech Ngetich v Eunice Chepkosgey Ngetich, District Land Registrar & Attorney General (Environment & Land Case 4 of 2017) [2018] KEELC 4514 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4514/eng@2018-01-24

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