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ELCDismissedNot stated in judgment· [2019] KEELC 3173 (KLR)

Republic v Land Registrar Transmara East/West Sub-Counties; Moses Meibako & another (Interested Parties) Ex Parte Peipei Ole Mosoiko [2019] KEELC 3173 (KLR)

High Court of Kenya
16 May 2019
960 words in judgment
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The bottom line

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Kenya's High Court dismissed a preliminary objection because it mixed facts with law, confirming objections must be pure points of law.

What this practically means

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Executive summary

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This ruling by J.M. Onyango, Judge, delivered at Kericho on 16 May 2019, determines a Preliminary Objection dated 14 August 2018 filed by the Interested Party in judicial review proceedings. The Ex-parte Applicant had sought an order of certiorari to quash the 1st Respondent's decision of 15 March 2018 revoking and/or cancelling its title to L.R No. TRANSMARA/MOITA/488, and an order of prohibition against implementation of that decision. Leave had been granted by the Environment and Land Court at Narok, but that judge recused himself and transferred the matter to Kericho. The Interested Party raised eight grounds: res judicata; bar under sections 7 and 6 of the Civil Procedure Act; want of jurisdiction; abuse of process; prematurity and the claim that the motion was mounted in a vacuum because prohibition was not captured in the statement of facts; and that the Applicant was non-suited. The court adopted the classic Mukisa Biscuit Manufacturing Company Ltd v West End Distributors Ltd definition of a preliminary objection as a pure point of law. It held that determining whether prohibition was captured in the statement of facts would require examining the pleadings, and determining abuse of process would require examining previous suits deposed to in the Replying Affidavit. The objection was therefore a mixture of law and fact and was dismissed on that ground alone. Costs were not addressed.

Key legal issues

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01

Definition and viability of a preliminary objection

Holding

The Preliminary Objection failed because it required the court to examine pleadings and affidavits to ascertain facts, contrary to the Mukisa Biscuit test

Reasoning

Applying the Mukisa Biscuit definition, the court noted that determining whether the prohibition order was captured in the statement of facts would require examining the pleadings, and assessing abuse of process would require examining previous suits deposed to in the Replying Affidavit. The objection was therefore a hybrid of law and fact and could not be disposed of as a pure point of law.

p. 2
02

Filing a preliminary objection together with a replying affidavit raising similar issues

Holding

Counsel for the Applicant argued this practice offends the Mukisa Biscuit principle, though the court's dismissal rested on the law/fact mixture

Reasoning

The Ex-parte Applicant's counsel faulted the Interested Party for filing the Preliminary Objection together with a Replying Affidavit raising similar issues that should have been canvassed purely as points of law. The court recorded this submission but ultimately dismissed the objection because its grounds required factual ascertainment.

p. 2

Legal principles established

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  • A preliminary objection must be a pure point of law; it fails if it requires ascertainment of facts or exercise of judicial discretion
  • A preliminary objection mixed with factual issues cannot be sustained on that ground alone

Court orders

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  1. 1.The Preliminary Objection dated 14th August 2018 was dismissed
  2. 2.Costs not addressed in the judgment as reproduced

Authorities

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Legislation

  • Civil Procedure Act, Cap 21section 7
  • Civil Procedure Act, Cap 21section 6
  • Land Registration Actsection 79g (2)

Cases cited (1)

  • Mukisa Biscuit Manufacturing Company Ltd v West End Distributors Ltd
    1969 EA 696
Jurisdiction invoked
Judicial review jurisdiction of the High Court (order of certiorari and prohibition; leave granted under the fair administrative action/judicial review framework)

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, "Republic v Land Registrar Transmara East/West Sub-Counties; Moses Meibako & another (Interested Parties) Ex Parte Peipei Ole Mosoiko [2019] KEELC 3173 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3173/eng@2019-05-16

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