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ELCDismissedNot stated in excerpt· [2021] KEELC 56 (KLR)

Joshua Silu Mukusa & 2 others v Titus Tali Kioko & 5 others [2021] KEELC 56 (KLR)

Environment and Land Court
8 December 2021
ANA. Nyukuri
1,780 words in judgment
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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 at Machakos (A. Nyukuri J) determined a Notice of Preliminary Objection dated 2nd June 2021 filed by the 4th Defendant seeking to strike out the Plaintiffs' suit as fatally defective for offending Article 62 of the Constitution and Section 41 of the Limitation of Actions Act. The objection was canvassed by written submissions; only the Plaintiffs' submissions were on record. The Plaintiffs argued that they acquired the suit property, Kalama/Katanga/628, through adverse possession pursuant to an agreement of 3rd March 1983 between the Management Committees of Katanga Primary School and Katanga Village Technology Centre, and that the defunct County Council of Masaku had relinquished its trusteeship. They contended that the objection was not a pure point of law since issues of ownership and the alleged allocation agreement required evidence. The court, applying the Mukisa Biscuit test, held that a preliminary objection must be a pure point of law on undisputed facts and must be precise and particularised. It found the 4th Defendant had failed to itemise the specific provisions relied upon, rendering the objection ambiguous, vague and blurred. Whether the land is public land and whether ownership changed hands could only be determined at the main hearing with viva voce evidence. The court also noted the objection was filed 20 years after the suit was instituted and appeared designed to delay the hearing. The court dismissed the preliminary objection with costs to the Plaintiffs and directed that a hearing date be fixed within 21 days.

Key legal issues

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01

Whether the preliminary objection dated 2nd June 2021 (founded on Article 62 of the Constitution and Section 41 of the Limitation of Actions Act) is merited

Holding

The preliminary objection failed; it was vague, ambiguous and based on contested facts requiring evidence

Reasoning

The court applied the Mukisa Biscuit test that a preliminary objection must be a pure point of law on undisputed facts. The 4th Defendant did not particularise the specific provisions relied on, rendering the objection vague. Whether the suit land is public land, whether ownership changed hands, and whether an agreement allocated the property to the Plaintiffs are substantive issues requiring viva voce evidence. The court also found the objection, filed 20 years into the suit, was intended to delay the hearing.

p. 3

Legal principles established

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  • A preliminary objection must be based only on a pure point of law anchored on undisputed facts; if evidence is needed to ascertain the facts, it cannot be sustained
  • A preliminary objection must be precise and particularised, not vague or ambiguous

Court orders

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  1. 1.The preliminary objection dated 2nd June 2021 is dismissed with costs to the Plaintiffs
  2. 2.A hearing date to be fixed within 21 days of the ruling

Authorities

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Legislation

  • Constitution of KenyaArticle 62
  • Limitation of Actions Act (Cap 22)Section 41
  • Limitation of Actions Act (Cap 22)Section 38(1)
  • Evidence ActSections 107 and 109

Cases cited (5)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Avtar Singh Bhamra & Ano. v Oriental Commercial Bank
    HCC No 53 of 2004
  • Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others
    [2004] eKLR
  • Agnes Mukami & 5 Others vs. Ngewahi and Company
    (2005) e KLR
  • DT Dobie vs. Muchina
    [1982] KLR 1
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit; preliminary objection raised under Article 62 of the Constitution and Section 41 of the Limitation of Actions Act (Cap 22)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joshua Silu Mukusa & 2 others v Titus Tali Kioko & 5 others [2021] KEELC 56 (KLR)", Case Analysis (2021). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/56/eng@2021-12-08

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