Tebere Concrete Company Limited v Dickson Macharia Gichuhi [2019] KEELC 2461 (KLR)
The bottom line
#The court dismissed the defendant's attempt to throw out a land ownership suit, ruling that disputed facts can't be decided through a preliminary objection and must be tested at a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether a Preliminary Objection premised on want of consent/authority under Section 30 of the Land Adjudication Act can be determined where the underlying facts are disputed
It cannot; such an objection is out of the ambit of a Preliminary Objection and must await the hearing when evidence is adduced
The court applied the established principle that Preliminary Objections are raised on pure points of law on undisputed facts. Where the factual basis of the objection - here whether authority or consent under Section 30 of the Land Adjudication Act was obtained - is contested, the court cannot resolve the dispute without evidence. The objection, if entertained, would invite determination of conflicting factual averments and unnecessarily prolong proceedings. The issue therefore has to wait for the hearing, and the objection was dismissed with costs.
Whether the objection to the plaintiff's advocate continuing to act remained live
The issue became moot because the advocate filed a Notice to cease acting and a new firm filed a Notice of change
The defendant objected to Morris Njage & Co. Advocates acting for the plaintiff on the ground that the firm had previously acted for the defendant and drawn the sale agreement. Before determination, that firm filed a Notice to cease acting and a new firm of Advocates came on record by Notice of change. The objection was therefore rendered academic and was deemed a non-issue, leaving only the sub-judice/defective suit ground for determination.
Legal principles established
#- A Preliminary Objection must rest on pure points of law and undisputed facts; where facts are disputed, the matter must proceed to hearing so that evidence can be adduced
Court orders
#- 1.The plaintiff's advocate-objection issue was deemed a non-issue following the Notice to cease acting and Notice of change of advocates
- 2.The Preliminary Objection raised by the defendant is dismissed with costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land (suit land P/NO. 1617 Wachoro, within a Land Adjudication area under the Land Adjudication Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tebere Concrete Company Limited v Dickson Macharia Gichuhi [2019] KEELC 2461 (KLR)", Case Analysis (2019). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2461/eng@2019-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.