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ELCAllowedELC Appeal No. 16 of 2017· [2019] KEELC 4265 (KLR)

Peter Muthaura Linguli v Halima Tina Mowesley & 2 others; Samuel Kiome Rimbere Muriithi (Interested Party) [2019] KEELC 4265 (KLR)

Environment and Land Court
28 February 2019
3,285 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This first appeal challenged a ruling of the Chief Magistrate's Court at Meru (Hon. H. Ndungu, CM) delivered on 29th June 2017, in which the trial court upheld a preliminary objection raised by the Interested Party and dismissed the Appellant's entire suit over land parcel LR No. NYAKI/KITHOKA/1914. The preliminary objection contended, among other grounds, that the court lacked pecuniary jurisdiction, that the 1st to 3rd Defendants were strangers with no locus standi, and that the claim belonged in a succession cause. The Appellant had filed an application seeking to amend his plaint to add the Interested Party as a defendant, but the trial court proceeded to dismiss the suit. E. C Cherono, J allowed the appeal. Relying on Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd, the court held that the preliminary objection was not a pure point of law since it turned on facts requiring evidence, and no defence had even been filed. Citing DT Dobie & Co. Ltd v Joseph Mbaria Muchina, the court held that a pleading should not be dismissed if it can be saved by amendment, and the trial court failed to consider whether the proposed amendments could inject life into the suit. Further, under Order 1 Rule 9 CPR, no suit shall be defeated by misjoinder or non-joinder of parties, and Order 1 Rule 7 allows a plaintiff in doubt to join several defendants. The court also held that upholding a preliminary objection warrants striking out, not dismissing, a pleading. The court set aside the dismissal, remitted the case for hearing before a different magistrate, and ordered each party to bear her own costs.

Key legal issues

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01

Whether the preliminary objection raised a pure point of law

Holding

It did not; it depended on facts such as ownership and locus of the defendants, which required evidence

Reasoning

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.

p. 4
02

Whether the suit should have been saved by amendment

Holding

Yes; the trial court should have considered the pending amendment application before dismissing the suit

Reasoning

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.

p. 4
03

Effect of misjoinder or non-joinder of parties

Holding

It cannot defeat a suit; a plaintiff in doubt may join two or more defendants

Reasoning

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.

p. 4
04

Whether dismissal rather than striking out was a proper order on upholding a preliminary objection

Holding

No; the correct order is striking out the offending pleading, not dismissing the entire suit

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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. 3.Each party to bear her own costs of the Appeal and the Preliminary Objection

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Civil Procedure Rules, 2010Order 8 Rule 1
  • Civil Procedure RulesOrder 1 Rule 3
  • Civil Procedure RulesOrder 1 Rule 9
  • Civil Procedure RulesOrder 1 Rule 7
  • Civil Procedure RulesOrder 14
  • Civil Procedure ActSections 1A and 1B

Cases cited (2)

  • DT Dobie & Co. Ltd –Vs- Joseph Mbaria Muchina & Another
    CA No. 37 of 1978 (Nairobi) (1980) eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd –Vs- West End Distributors Ltd
    (1969) EA 698
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

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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, "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.