Jael Atieno Kwaje & another v Prisca Omondi & 4 others [2020] KEELC 1023 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the plaint is incompetent and bad in law
Preliminary objection on this ground failed; on the pleadings the claim is justiciable
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.
Whether the plaintiff lacks locus standi
The objection failed; nothing was placed before the court to prove the assertion
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.
Whether striking out the plaint was a warranted exercise of the court's draconian power
This was not a plain and clear case justifying striking out
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.
Legal principles established
#- 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
#- 1.The defendants' Preliminary Objection dated 5th February 2016 and filed on 9th February 2016 is dismissed
- 2.No orders as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.