Reuben Kipkoech Ngetich v Eunice Chepkosgey Ngetich, District Land Registrar & Attorney General (Environment & Land Case 4 of 2017) [2018] KEELC 4514 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiff has locus standi to file the suit
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
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.
Whether the plaint should be struck out for being incompetent
The Preliminary Objection was disallowed because the plaintiff appeared to have a Limited Grant and had applied for leave to amend his plaint
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.
Legal principles established
#- 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
#- 1.The 1st Defendant's Preliminary Objection dated 28th March, 2017 is disallowed
- 2.No order as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.