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ELCOtherPetition dated 29th November 2017 (Mombasa)· [2019] KEELC 4709 (KLR)

Makupa Transit Limited v County Government of Mombasa [2019] KEELC 4709 (KLR)

Environment and Land Court
7 February 2019
CYC.K. Yano
1,643 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Mombasa court refused to strike out a business's constitutional petition against the County Government over a blocked access road, ruling the objections needed evidence first.

What this practically means

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Executive summary

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By a petition dated 29th November 2017, Makupa Transit Shade Limited, a container freight station operator in Makupa, Mombasa, sued the County Government of Mombasa, alleging that on 15th November 2017 county officers, with police assistance, blocked the only access to its CFS by heaping garbage across the road and mutilating the paved access, purportedly in obedience to a Court of Appeal order of 2nd November 2017 in Civil Application No.43 of 2017 arising from Mombasa Judicial Review Case No.11 of 2017. The petitioner sought declarations of breaches of Articles 38(1), 40(1), 42, 43(1)(b) and 47, mandamus to remove the garbage, effect repairs and compensate it for loss of business, reputation and property, and an order of prohibition against further interference. The respondent opposed and filed a notice of preliminary objection dated 6th December 2017 contending that the claims were not pure constitutional matters, fell under other branches of law (trespass, malicious damage, commercial disputes) and duplicated pending proceedings, so the petition should be struck out. In submissions, the respondent relied on Kiambu County Tenants Association and Eric Wambua Muli; the petitioner relied on Mukisa Biscuits, contending the objection raised facts. Applying Mukisa Biscuits and D.T. Dobie & Company (Kenya) Limited v Muchina, the court held that whether the matters had been dealt with in previous litigation required evidence and could not be decided preliminarily. The preliminary objection was dismissed with costs. The petition itself remains for full hearing.

Key legal issues

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01

Whether the preliminary objection qualified as a pure point of law

Holding

It did not; it required ascertainment of facts about prior litigations and the petition's averments

Reasoning

The court applied the Mukisa Biscuits test. Determining whether the issues raised had been dealt with in previous litigation would require further evidence and argument to establish their veracity. Such grounds go to the root of the petition and cannot be addressed before a full hearing, so raising them preliminarily would be prejudicial.

p. 2
02

Whether the petition should be struck out as raising non-constitutional issues and duplicating pending suits

Holding

No, not at the preliminary stage

Reasoning

Counsel for the respondent argued the claims were essentially trespass, malicious damage and commercial issues, not constitutional questions, and that parallel proceedings existed. The court held that resolving such questions requires evidence at a full hearing; striking out without determining them would prejudge the merits, which D.T. Dobie forbids.

p. 2

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained or if judicial discretion is sought
  • The power to strike out pleadings must not be exercised by embarking on the merits of the case
  • An objection based on other former or pending suits touching the same subject matter is a factual issue to be determined upon hearing of evidence

Court orders

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  1. 1.The preliminary objection is dismissed
  2. 2.Costs of the preliminary objection to the petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 38(1), 40(1), 42, 43(1)(b) and 47

Cases cited (4)

  • Mukisa Biscuits Manufacturing Co. Ltd –v- West End Distributors Limited
    (1969) EA 696
  • D. T. Dobie & Company Kenya Limited – v- Muchina
    (1982) KLR
  • Kiambu County Tenants Association -v- Attorney General
    (2016) eKLR
  • Eric Wambua Muli –v- Prime Bank Limited
    (2017) eKLR
Jurisdiction invoked
Articles 38(1), 40(1), 42, 43(1)(b) and 47 of the Constitution of Kenya, 2010 (as invoked in the petition)

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, "Makupa Transit Limited v County Government of Mombasa [2019] KEELC 4709 (KLR)", Case Analysis (2019). Petition dated 29th November 2017 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4709/eng@2019-02-07

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