Peris Mashipei Mpaayei v Moinke Ene Ernest Mpaayei & 3 others [2020] KEELC 1581 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to strike out a land dispute, ruling that a preliminary objection cannot rely on facts that still need evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection was a true preliminary objection on a pure point of law
The objection was dismissed as it depended on contested facts such as the existence of the suit parcel, the Plaintiff's locus standi and the alleged pending suit, all of which require evidence
Applying the Mukisa Biscuit definition, the court held that the grounds raised (non-existence of the parcel, locus standi, sub judice) bear factual aspects calling for proof. The Plaintiff had annexed a Certificate of Confirmation of Grant, minutes of a family meeting, a deed plan and a title, showing she was an administrator allocated half the land. The Defendants produced no documents showing another pending suit. Article 159(2)(d) counsels against striking out on technicalities.
Whether the Plaintiff had locus standi to institute the suit
The Plaintiff, being one of the administrators under the Certificate of Confirmation of Grant and allocated half of the suit land, had locus standi to protect her portion
From the Plaint and annexures, the Plaintiff demonstrated that she and the 1st Defendant were each allocated portions of KJD/OLCHORO ONYORE/16817 Part A and Part B pursuant to Succession Cause No. 1836 of 2005. The Grant confirmed she was an administrator of the estate of Ernest Letoya Ole Mpaayei and was allocated half the parcel. The court therefore disagreed with the Defendants that the portion claimed did not exist and that she lacked standing.
Legal principles established
#- A preliminary objection must be a pure point of law and cannot rest on disputed facts requiring evidence
- The power to strike out pleadings must be exercised sparingly and only in the clearest of cases
- Justice is to be administered without undue regard to procedural technicalities under Article 159(2)(d)
Court orders
#- 1.The Notice of Preliminary Objection dated 15th October, 2019 is disallowed as premature
- 2.Costs will be in the cause
- 3.The suit to be set down for hearing and determined on its merits
- Jurisdiction invoked
- Original civil jurisdiction over land matters; Article 159(2)(d) of the Constitution invoked on procedure
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peris Mashipei Mpaayei v Moinke Ene Ernest Mpaayei & 3 others [2020] KEELC 1581 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1581/eng@2020-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.