Caroline Waithera Mungai & 3 others v Ernest Muinde Kioko & 5 others [2019] KEELC 4567 (KLR)
The bottom line
#A Mombasa court refused to strike out a land dispute suit and counter-claim, holding that procedural defects should be fixed by amendment, not dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to file a verifying affidavit with the counter-claim justified striking it out
No - the verifying affidavit was subsequently filed and deemed duly filed by consent, and in any event the defect was amendable
On 8th October 2018 a verifying affidavit sworn by Samuel Mwangi on behalf of the 3rd defendant was filed and, with no objection, deemed duly filed. This rendered the Order 7 objection overtaken by events. Relying on D.T. Dobie & Co Ltd v Muchina, the court held that a curable procedural defect such as a missing verifying affidavit should be resolved by amendment, not by striking out the counter-claim.
Whether the estoppel and principal-agent objections were true preliminary objections
No - both require evidence to establish the facts relied on and so fail the Oraro v Mbacha threshold
To succeed on estoppel, the 2nd defendant would need to present facts and documents proving that the plaintiff and 3rd-5th defendants acted on the 1st defendant's declaration of ownership. Similarly, the principal-agent relationship is factual. Because both objections require authentication by evidence, they are not pure points of law and automatically fail as preliminary objections under Oraro.
Whether the objection under section 9 of the Land Registration Act was properly raised as a preliminary objection
No - the 2nd defendant could only raise it as a defence to the claim, not as a preliminary objection
The 2nd defendant argued that it was not engaged in maintaining conveyance documents, a duty bestowed on the Land Registrar under section 9 of the Land Registration Act. The court held this point could not be deployed as a preliminary objection; the proper route was to plead it as a defence to the claim, leaving it for determination at the trial.
Legal principles established
#- A preliminary objection must be a pure point of law and cannot depend on facts requiring proof by evidence
- A suit should be sustained rather than terminated; striking out is reserved for suits incurable by amendment
Court orders
#- 1.Both preliminary objections dated 10th April 2018 and 4th June 2018 dismissed
- 2.Costs of the preliminary objections awarded to the plaintiff, costs in the cause
- Jurisdiction invoked
- Original civil jurisdiction over a suit and counter-claim concerning registered land (Civil Procedure Rules and Land Registration Act invoked in the objections)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Caroline Waithera Mungai & 3 others v Ernest Muinde Kioko & 5 others [2019] KEELC 4567 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4567/eng@2019-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.