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ELCDismissedNot stated in the extract (Petition filed before the Environment and Land Court, Mombasa)· [2020] KEELC 1724 (KLR)

Kenya Agricultural and Livestock Research Organization (KARLO) v Edison Sonje Taura & 3 others [2020] KEELC 1724 (KLR)

Environment and Land Court
2 March 2020
1,219 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 ruled that a preliminary objection cannot be used to kill a land case when deciding it would require investigating disputed facts.

What this practically means

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Executive summary

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The 1st and 2nd Respondents raised a preliminary objection dated 28 October 2019 seeking to strike out the Petitioner's petition on two grounds: first, that there was a pending suit between the same parties over the same land, being Mombasa ELC No. 214 of 2018 (OS) in which the Petitioner was listed as 2nd Respondent; and secondly, that the petition was time-barred under Section 7 of the Limitation of Actions Act, the Respondents alleging occupation of the land for over 27 years since 1992. Counsel for the 4th Respondent supported the objection as raising sub judice. Counsel for the Petitioner opposed it, relying on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, arguing that the objection required ascertainment of disputed facts and was therefore not a pure point of law. The court, applying the Mukisa Biscuit test, held that a preliminary objection must be argued on the assumption that all facts pleaded by the other side are correct and cannot stand where facts must be ascertained or discretion exercised. To uphold the objection, the court would have to verify the existence of ELC No. 214 of 2018, its parties and subject matter, and investigate on evidence when the cause of action arose - a mini-trial that disqualifies the objection. No evidence had been filed to support the alleged occupation since 1992. The court dismissed the preliminary objection with costs and declined to strike out the petition, leaving the issues for determination in the substantive suit or a proper striking-out application. Delivered at Mombasa on 2 March 2020 by C.K. Yano, Judge.

Key legal issues

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01

Whether an objection premised on existence of a pending suit (sub judice/res judicata) is a pure point of law

Holding

It is not; the court must verify facts such as the existence of the other suit, its parties and subject matter

Reasoning

Counsel for the Petitioner argued, and the court agreed, that a valid preliminary objection must rest on a pure point of law without need to ascertain facts. To uphold the objection on sub judice grounds the court would have to verify whether ELC No. 214 of 2018 exists, who its parties are, and whether its subject matter matches the present suit. Such fact-finding converts the objection into a mini-trial, disqualifying it as a preliminary objection.

p. 2
02

Whether a limitation-of-time objection can be determined without evidence

Holding

No; the court cannot find a suit time-barred without evidence establishing when the cause of action arose

Reasoning

The 1st and 2nd Respondents contended the petition was caught by Section 7 of the Limitation of Actions Act, alleging occupation for over 27 years. The court held that determining whether a claim is time-barred requires investigating when the cause of action arose, which is a question of fact requiring evidence. As no evidence had been filed to support the alleged occupation since 1992, the objection could not be sustained on a preliminary basis.

p. 2

Legal principles established

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  • A preliminary objection must raise a pure point of law and cannot be sustained where facts must be ascertained or where the court's discretion is sought

Court orders

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  1. 1.The Preliminary Objection dated 28th October 2019 is dismissed
  2. 2.Costs of the Preliminary Objection awarded to the Petitioner

Authorities

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Legislation

  • Limitation of Actions ActSection 7

Cases cited (1)

  • Mukisa Biscuit Manufacturing Co. Ltd –v- West End Distributors Ltd
    (1969) EA 696
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit land (reference to ELC No. 214 of 2018 (OS) pending before the same court)

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, "Kenya Agricultural and Livestock Research Organization (KARLO) v Edison Sonje Taura & 3 others [2020] KEELC 1724 (KLR)", Case Analysis (2020). Not stated in the extract (Petition filed before the Environment and Land Court, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1724/eng@2020-03-02

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