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ELCDismissedELC Case No. 350 of 2015 (Kisumu)· [2020] KEELC 1023 (KLR)

Jael Atieno Kwaje & another v Prisca Omondi & 4 others [2020] KEELC 1023 (KLR)

Environment and Land Court
14 October 2020
1,185 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court (Boaz N. Olao, J) determines a preliminary objection raised by the defendants in a trespass suit over parcel 0421/29 Kibos Halaka Scheme. The plaintiff, Jael Atieno Kwaje, suing as administrator of the estate of her late husband Caleb Apunda Kwaje, alleges the defendants trespassed on the suit land on 11th June 2009 and seeks eviction, general damages and costs. The defendants, in a joint statement of defence, contend the land is a Government squatter settlement scheme and gave notice of a preliminary objection that the plaint is incompetent, bad in law and unmaintainable, and that the plaintiff lacks locus standi. The court noted anomalies in the file, including two plaints under the same case number filed at different stations and inconsistency as to whether there are one or two plaintiffs. Neither party filed submissions as directed, so the court decided solely on the notice of objection. It held that the onus lay on the defendants to prove the suit was bad in law and that the plaintiff lacked locus standi; nothing was placed before the court to support either ground. Applying the definition of locus standi in Alfred Njau v City Council of Nairobi and the principle from D. T. Dobie & Co. Ltd v Muchina that striking out is a draconian power to be exercised judiciously, the court found the claim facially justiciable and declined to speculate. The preliminary objection was dismissed with no orders as to costs, leaving the suit to proceed to trial.

Key legal issues

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01

Whether the plaint is incompetent and bad in law

Holding

Preliminary objection on this ground failed; on the pleadings the claim is justiciable

Reasoning

The plaintiff alleges her late husband purchased suit land 0421/29 Kibos Halaka Scheme in 1991 and that the defendants trespassed in 2009. On its face this is a justiciable claim. The defendants filed no submissions and adduced no proof that the plaint lacks legal foundation, so the court could not conclude it was bad in law or incompetent.

p. 2
02

Whether the plaintiff lacks locus standi

Holding

The objection failed; nothing was placed before the court to prove the assertion

Reasoning

Locus standi means the right to appear or be heard in court. Other than the bare claim by the defendants, no material demonstrated that the plaintiff has no right or interest in the land or that she is not the administrator of the estate. The pleadings contained insufficient material for the court to resolve the issue without speculating.

p. 2
03

Whether striking out the plaint was a warranted exercise of the court's draconian power

Holding

This was not a plain and clear case justifying striking out

Reasoning

Upholding the preliminary objection would inevitably lead to striking out the plaint. Following D. T. Dobie & Co. Ltd v Muchina, the power must be exercised judiciously and is reserved for plain and clear cases, which this was not on the material before the court.

p. 2

Legal principles established

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  • The burden is on the party raising a preliminary objection to prove it
  • A court cannot speculate or embark on a fishing expedition; it decides only on material placed before it
  • Striking out a pleading is a draconian power to be exercised judiciously

Court orders

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  1. 1.The defendants' Preliminary Objection dated 5th February 2016 and filed on 9th February 2016 is dismissed
  2. 2.No orders as to costs

Authorities

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Cases cited (2)

  • Alfred Njau & Others v City Council of Nairobi
    1983 eKLR
  • D. T. Dobie & Company (Kenya) Ltd v Muchina
    1982 KLR 1
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Article 162(2)(b) of the Constitution, not expressly quoted in the ruling)

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, "Jael Atieno Kwaje & another v Prisca Omondi & 4 others [2020] KEELC 1023 (KLR)", Case Analysis (2020). ELC Case No. 350 of 2015 (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1023/eng@2020-10-14

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