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ELCOther· [2020] KEELC 1071 (KLR)

Unilever Tea Kenya Limited v Andrew Cheruiyot Rotich & 3 others [2020] KEELC 1071 (KLR)

Environment and Land Court
12 October 2020
1,241 words in judgment
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The bottom line

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The Environment and Land Court in Kericho dismissed a preliminary objection because the defendants raised disputed land-title facts that must be tested at trial.

What this practically means

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Executive summary

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This is a ruling on a Notice of Preliminary Objection dated 14th May 2020, raised by the 1st – 4th defendants in a land dispute before the Environment and Land Court at Kericho. Both sides claim ownership of the same parcel of land (8km from Kericho Municipality) under different titles: the plaintiff relies on L.R No. 9932/4, IR No. 83722, while the defendants claim under L.R No. 31892, each alleging the other's title was fraudulently obtained. The defendants' three-pronged objection sought to terminate the suit on grounds that it was an abuse of court process, sought to legitimize a non-existent title, and offended the public policy principle ex dolo malo non oritur actio. Canvassed by written submissions, the court found the objection fatally flawed on two fronts. First, procedurally, the defendants had not filed a defence before raising the objection – described as a 'tactical blunder' – and, following Achola v Hongo, a point not pleaded in a defence cannot ground a preliminary objection. Second, applying the classic Mukisa Biscuit formulation, the objection did not raise a pure point of law since it rested on seriously contested facts about title and fraud, which must be established at trial. The court further emphasized the parties' fundamental right to be heard on the merits, citing Court of Appeal authority. The preliminary objection was accordingly dismissed with costs, and the suit remains to be heard and determined on its merits.

Key legal issues

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01

Procedural propriety of raising a preliminary objection before filing a defence

Holding

The correct practice is to file a defence first, raise the point of law in it, and only then give notice of the preliminary objection; raising it without a defence was a tactical error

Reasoning

Relying on Achola & Another v Hongo & Another, where a preliminary objection on limitation failed because limitation had not been pleaded in the defence, the court held that filing a defence first contextualises the objection and removes surprise. The defendants here had filed no defence; the point was raised only in response to an interlocutory application, and the notice was directed at the suit, which was procedurally wrong.

p. 1
02

Whether the objection raised a pure point of law

Holding

No – the objection rested on contested facts (the genuineness and validity of the competing titles), which can only be established at trial

Reasoning

Applying Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd and its affirmation in Muiruri v Kimemia and Sirma v Kiprono, the court found the defendants were disputing the plaintiff's pleaded material facts and alleging fraud while fraud was alleged against them in turn. Since the facts were neither admitted nor undisputed, the objection could not stand and the defendants should have waited for trial.

p. 2
03

The court's preference for determination on the merits

Holding

Courts endeavour to determine suits on their merits; the objection would not be allowed to terminate the suit unheard

Reasoning

Citing Peter Ngugi Kabiri v Esther Wangari Githinji & Another and Kutima Investments Limited v Muthoni Kihara & Another, the Court of Appeal's insistence that hearing parties on the merits is a fundamental right was invoked. The court expressed its desire to have the matter fully heard and determined on merits, reinforcing dismissal of the objection.

p. 2

Legal principles established

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  • A preliminary objection must raise a pure point of law based on facts that are correct, admitted or undisputed; it cannot be raised where the facts require establishment through trial
  • A party who has not pleaded a point in a defence may not base a preliminary objection on it
  • Parties have a fundamental right to be heard on the merits

Court orders

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  1. 1.Dismissal of the Notice of Preliminary Objection dated 14th May 2020
  2. 2.Costs of the objection awarded to the plaintiff

Authorities

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Legislation

  • Public Authorities Limitation Actnot specified

Cases cited (6)

  • Achola & Another Vs Hongo & Another
    (2004) I KLR 462
  • MUKISA BISCUIT MANUFACTURING CO LTD VS WEST END DISTRIBUTORS LTD
    (1969) EA 696
  • MUIRURI VS KIMEMIA
    (2002) 2 KLR 677
  • SIRMA VS KIPRONO
    (2005) I KLR 197
  • PETER NGUGI KABIRI VS ESTHER WANGARI GITHINJI & ANOTHER
    (2015) eKLR
  • KUTIMA INVESTMENTS LIMITED VS MUTHONI KIHARA & ANOTHER
    (2005) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the land dispute (statutory basis not expressly cited in the 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, "Unilever Tea Kenya Limited v Andrew Cheruiyot Rotich & 3 others [2020] KEELC 1071 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1071/eng@2020-10-12

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