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ELCDismissedNot stated in excerpt· [2020] KEELC 51 (KLR)

Leonard Makwa Shibwoni v Samson Makhoya Mukabana [2020] KEELC 51 (KLR)

Environment and Land Court
30 April 2020
NMN.A. Matheka
866 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a preliminary objection because it required investigating facts, not just arguing law, and awarded costs to the buyer.

What this practically means

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Executive summary

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The defendant raised a preliminary objection seeking striking out of the plaintiff's suit and application dated 16th June 2017, on three grounds: lack of locus standi, lack of jurisdiction of the court, and unprocedural orders because the plaintiff is not a party to the family or estate of the suit property. The plaintiff's suit sought eviction of the defendant from land parcel South Kabras/Shamberere/83, which the defendant had allegedly sold to the plaintiff by agreement dated 11th May 2013, with possession and development permitted, but the defendant declined to remove his house from the sold portion. The plaintiff argued the suit merely enforces the contract between the parties and that the succession proceedings, being Succession Cause No. 624 of 2014 before the High Court at Kakamega, concern the defendant and his family, not the plaintiff. The court applied the classic definition of a preliminary objection in Mukisa Biscuit Manufacturing Company Ltd v West End Distributors Ltd and the principles in Oraro v Mbajja, holding that although locus may properly be raised as a preliminary objection, the objection here rested on facts requiring investigation - the existence of the sale agreement and the pending succession cause. It therefore struck out the preliminary objection with costs and directed that the matter proceed.

Key legal issues

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01

Whether the preliminary objection on locus standi and jurisdiction was sustainable

Holding

Not sustainable because it depended on facts requiring investigation

Reasoning

The court accepted that locus can properly be raised as a preliminary objection. However, it found undisputed factual matters: the parties entered a sale agreement, and the suit land is subject to Succession Cause No. 624 of 2014 before the High Court at Kakamega. Since the court was not privy to these facts and would need to investigate them to make a final determination, the objection failed the test in Mukisa Biscuit and Oraro v Mbajja and was struck out with costs.

p. 2

Legal principles established

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  • A preliminary objection must raise a pure point of law and cannot be raised where facts must be ascertained or judicial discretion exercised
  • Any assertion bearing factual aspects calling for proof is not a true preliminary objection

Court orders

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  1. 1.The preliminary objection is struck out with costs

Authorities

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Cases cited (2)

  • Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd
    (1969) E.A 696
  • Oraro vs. Mbajja
    [2005] e KLR
Jurisdiction invoked
Original civil jurisdiction over land disputes (specific provision not cited in judgment)

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, "Leonard Makwa Shibwoni v Samson Makhoya Mukabana [2020] KEELC 51 (KLR)", Case Analysis (2020). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/51/eng@2020-04-30

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