Peter Muthaura Linguli v Halima Tina Mowesley & 2 others; Samuel Kiome Rimbere Muriithi (Interested Party) [2019] KEELC 4265 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that a land dispute cannot be thrown out just because the wrong people were sued, especially when an amendment could fix it.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection raised a pure point of law
It did not; it depended on facts such as ownership and locus of the defendants, which required evidence
Applying Mukisa Biscuits, a preliminary objection must rest on a pure point of law argued on the assumption that all pleaded facts are correct. Here, questions of whether the 1st to 3rd Defendants were owners or administrators, and who held title at the time of filing, were matters of fact. No defence had been filed, so no basis existed to resolve them without evidence.
Whether the suit should have been saved by amendment
Yes; the trial court should have considered the pending amendment application before dismissing the suit
Following DT Dobie, a suit showing a semblance of a cause of action curable by amendment should proceed. The Appellant had filed a Notice of Motion dated 24th April 2017 seeking to amend the plaint, yet the trial court dismissed the suit without determining whether the proposed amendments could inject life into it.
Effect of misjoinder or non-joinder of parties
It cannot defeat a suit; a plaintiff in doubt may join two or more defendants
Order 1 Rule 9 CPR forbids defeating a suit for misjoinder or non-joinder, and Order 1 Rule 7 allows a plaintiff unsure of the proper defendant to join several defendants. Dismissing the suit on the ground that the wrong parties were sued contravened these provisions.
Whether dismissal rather than striking out was a proper order on upholding a preliminary objection
No; the correct order is striking out the offending pleading, not dismissing the entire suit
The court agreed with counsel that when a preliminary objection succeeds, the resultant order should strike out the offending pleading to allow filing of a compliant pleading. Dismissing the entire suit was an alien and draconian order that perpetually shut the plaintiff out from the seat of judgment.
Legal principles established
#- A suit should not be dismissed on a preliminary objection that is not a pure point of law, especially where no defence has been filed to ascertain whether any fact requires determination
- A pleading should not be struck out or dismissed if it can be saved by amendment
- No suit shall be defeated by reason of misjoinder or non-joinder of parties
- The proper consequence of upholding a preliminary objection is striking out the offending pleading, not dismissing the entire suit
Court orders
#- 1.The Order by the Learned Chief Magistrate Hon. H. Ndungu on 29th June 2017 dismissing CMCC No. 373 of 2014 be and is hereby set aside
- 2.The case is remitted back to the Magistrates Court for hearing before any other Magistrate Gazetted to handle ELC Case other than Hon. H. Ndungu - Chief Magistrate
- 3.Each party to bear her own costs of the Appeal and the Preliminary Objection
- On appeal from
- Chief Magistrate's Court at Meru
- CMCC No. 373 of 2014
- Jurisdiction invoked
- First appeal from the Magistrates' Court under the Environment and Land Court's appellate jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Muthaura Linguli v Halima Tina Mowesley & 2 others; Samuel Kiome Rimbere Muriithi (Interested Party) [2019] KEELC 4265 (KLR)", Case Analysis (2019). ELC Appeal No. 16 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4265/eng@2019-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.