M’mboroki Thuraine v M’ikiao Laikuru & 3 others [2019] KEELC 727 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed an appeal after finding a preliminary objection defective, reviving a land adjudication dispute for a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the three grounds in the notice of preliminary objection constituted pure points of law
None of the three grounds was a pure point of law; each was nebulous or invited arguments and evidence
The court examined each ground individually. Ground 1 ('the court cannot grant the relief sought herein') was nebulous and invited arguments only fully canvassable at the hearing. Ground 2 alleged fraud, which requires proof and thus evidence. Ground 3, that the suit sought to quash the minister's decision, also invited arguments. None raised a pure point of law as required by Mukisa Biscuit.
Whether lack of jurisdiction was properly raised in the preliminary objection
The objection never pleaded lack of jurisdiction, and such a ground must be stated unequivocally
Although the respondents' submissions argued that the magistrate's court lacked jurisdiction to quash the decision of an adjudication officer, the court held that this ground was nowhere asserted in the notice of preliminary objection itself. A court cannot uphold an objection on a ground not raised in it; the issue of lack of jurisdiction must be stated in unequivocal terms, which was not done here.
Whether the dismissal of the suit denied the appellant access to justice
By allowing the appeal the court implicitly rejected the finding that the dismissal was justified; access to justice required the suit to be heard on its merits
The appellant's second ground of appeal was that the dismissal dealt a blow to his right of access to justice. Since the court found the preliminary objection defective and allowed the appeal, remitting the suit for hearing, the objection that the suit was time-barred or in the wrong forum (as urged by the respondents) did not prevail. The court did not separately and expressly determine this ground in its brief analysis.
Legal principles established
#- A preliminary objection must raise a pure point of law, must not be nebulous, and must not invite ascertainment of facts or arguments on the merits
- Where a preliminary objection is based on lack of jurisdiction, that ground must be stated in unequivocal terms
Court orders
#- 1.The appeal is allowed
- 2.The lower court's order is set aside
- 3.The suit is remitted to the Marimanti SPM's Court for hearing and determination
- 4.Costs shall be in the main cause in the lower court
- On appeal from
- Senior Principal Magistrate's Court at Marimanti
- Marimanti SPM ELC No. 37 of 2017
- Jurisdiction invoked
- First appeal to the Environment and Land Court against a decision of the Senior Principal Magistrate's Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M’mboroki Thuraine v M’ikiao Laikuru & 3 others [2019] KEELC 727 (KLR)", Case Analysis (2019). ELC Appeal (Chuka) - Memorandum of Appeal dated 7th December 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/727/eng@2019-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.