Munjo Investment Limited v George Muriti Gathecha T/A Mungaru Enterprises & another [2019] KEELC 1296 (KLR)
The bottom line
#The Environment and Land Court dismissed the Salvation Army's attempt to strike out a land suit but moved the case to the Magistrate's Court.
What this practically means
#Executive summary
#Key legal issues
#Whether the Preliminary Objection raises a pure point of law
The objection is largely not a pure point of law; issues such as privity of contract call for investigation of facts
Citing Mukhisa Biscuit and Oraro v Mbaja, the Court held that a preliminary objection must not be founded on disputed facts or require evidence. The privity issue requires factual investigation, and the arbitration and jurisdiction issues were entangled with factual assertions about agreements and value.
Whether the dispute should be referred to arbitration
No referral; the Defendants did not apply for a stay timeously and there is no arbitration agreement between the Plaintiff and the 2nd Defendant
Section 6(1) of the Arbitration Act requires an application for stay not later than entry of appearance. The Defendants entered appearance on 4/4/19 and filed grounds of opposition without seeking a stay. Further, the suit against the 2nd Defendant is a trespass claim and no arbitration clause binds the Plaintiff and the 2nd Defendant.
Whether the matter is res judicata or sub judice
Not established; the twin issues were abandoned in submissions and no evidence of the NET proceedings was presented
The 2nd Defendant raised res judicata and sub judice in the preliminary objection but did not present the proceedings or judgment in NET No. 006. Mere allegation cannot found a finding of sub judice or res judicata under sections 6 and 7 of the Civil Procedure Act.
Pecuniary jurisdiction
The suit should be heard in the Chief Magistrate's Court, whose pecuniary jurisdiction covers the subject matter
The lease agreement's value is stated at Kshs 3.0 Million, below the Kshs 20 Million ceiling for the Chief Magistrate's Court under the Magistrates Act. Although the plaint does not disclose the value, the Court adopted the value in the lease agreement and transferred the suit.
Privity of contract with officials of the 2nd Defendant
This is not a pure point of law; it requires factual investigation
The 2nd Defendant argued that no privity exists between the Plaintiff and Samuel Wangai Kangara and Starlin Kiliswa, relying on Muchendu v Waita. The Plaintiff countered that societies sue and are sued through their officials. The Court found this a factual issue unfit for determination as a preliminary point.
Legal principles established
#- A preliminary objection must be a pure point of law, not blurred with factual details
- A party seeking referral to arbitration must apply for a stay of proceedings not later than the time of entering appearance
Court orders
#- 1.The Preliminary Objection is dismissed
- 2.The suit is transferred to the Chief Magistrate's Court at Murang'a for hearing and determination
- 3.The file be mentioned before the Chief Magistrate within 14 days from the date of the ruling
- 4.The costs of the Preliminary Objection shall be met by the 2nd Defendant in favour of the Plaintiff
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya 2010 (Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munjo Investment Limited v George Muriti Gathecha T/A Mungaru Enterprises & another [2019] KEELC 1296 (KLR)", Case Analysis (2019). Not stated in judgment (Notice of Motion dated 27/2/19; NET No. 006 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1296/eng@2019-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.