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ELCDismissed· [2021] KEELC 395 (KLR)

Zipporah Njoki Kangara v Rock and Pure Limited & 3 others [2021] KEELC 395 (KLR)

Environment and Land Court
16 December 2021
2,676 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 in Mombasa dismissed defendants' attempt to throw out a land dispute, confirming it can hear cases involving matrimonial property.

What this practically means

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Executive summary

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The 1st, 3rd and 4th Defendants filed a Notice of Preliminary Objection seeking dismissal of the Plaintiff's suit on the grounds that the court lacked jurisdiction over alleged matrimonial property, lacked territorial jurisdiction over properties in Nairobi County, and that the suit disclosed no reasonable cause of action within the court's jurisdiction under Article 162(2)(b) of the Constitution and Section 1 of the ELC Act. The 2nd Defendant did not participate. The Plaintiff opposed, arguing the objection was vague and raised disputed facts, and that her claim was for rectification of titles fraudulently transferred to the 1st Defendant in disregard of Sections 28 and 93(2) of the Land Registration Act, not a division of matrimonial property. Justice L. L. Naikuni framed issues on the threshold of a preliminary objection, subject matter and territorial jurisdiction, and jurisdiction over matrimonial property. Applying Mukisa Biscuits and the Aviation & Allied Workers Union decision, the court held the objection invited findings on disputed facts and thus was not a pure point of law. Relying on BWM v JMC, the court held that the matrimonial character of suit property does not oust the ELC's jurisdiction where the dispute concerns occupation, use and title to land, and held that the Civil Procedure Act's territorial provisions cannot defeat the court's constitutional jurisdiction. The preliminary objection was dismissed with costs to the Plaintiff, and the suit was directed to a pre-trial session on 10th February 2022 and fixation for full hearing on a priority basis.

Key legal issues

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01

Whether the objection met the threshold of a preliminary objection

Holding

The court affirmed the objection was properly framed but, because it invited determination of disputed facts, it could not be sustained as a pure point of law.

Reasoning

Applying Mukisa Biscuits and the Supreme Court in Aviation & Allied Workers Union, the court held that a preliminary objection must be a pure question of law with no contest as to facts. The objection described the suit properties as 'alleged' matrimonial properties, showing the facts were disputed; establishing the absence of cause of action would require factual evidence and judicial discretion, which takes the matter outside a true preliminary objection.

p. 5
02

Whether the ELC has jurisdiction over property alleged to be matrimonial property

Holding

Yes. The dispute concerns ownership, title and transfer of land, placing it squarely within the ELC's jurisdiction under Article 162(2)(b) and the ELC Act; the alleged matrimonial character of the property does not oust that jurisdiction.

Reasoning

The court reasoned that the plaintiff's claim is for rectification/cancellation of titles allegedly fraudulently transferred in disregard of Sections 28 and 93(2) of the Land Registration Act, and to secure spousal rights under Section 28. Citing BWM v JMC, the court noted that matrimonial property disputes relating to occupation, use and title to land fall within the concurrent jurisdiction of the ELC.

p. 4
03

Whether the court has territorial jurisdiction over property in Nairobi County

Holding

The territorial limits in the Civil Procedure Act cannot oust the ELC's constitutional jurisdiction.

Reasoning

The court held that Section 13 (referred to as such, though counsel cited Section 12) of the Civil Procedure Act cannot defeat jurisdiction vested in the court by Article 162(2)(a) of the Constitution, finding that the constitutional grant of jurisdiction prevails over statutory territorial limitations.

p. 5

Legal principles established

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  • The ELC's jurisdiction over land disputes is not ousted merely because the suit property is alleged to be matrimonial property; the court may hear matrimonial property disputes involving occupation, use and title to land.
  • A preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct and cannot be sustained where facts must be ascertained.

Court orders

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  1. 1.The Notice of Preliminary Objection dated 14th September 2021 is dismissed with costs to the Plaintiff
  2. 2.The suit to be mentioned on 10th February 2022 for Pre Trial Session under Order 11 of the Civil Procedure Rules, 2010 and fixed for full hearing on a priority basis
  3. 3.Costs to be borne by the 1st, 2nd, 3rd & 4th Defendants

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b); Article 162(2)(a)
  • Environment and Land Court ActPreamble; Sections 4 and 13(1)
  • Civil Procedure ActSections 12 and 13
  • Land Registration ActSections 28 and 93(2)
  • Matrimonial Property Act, 2015Section 6(1)(c)
  • Civil Procedure Rules, 2010Order 11

Cases cited (10)

  • AKM – Versus - NNN (2019) eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd –VS- West End Distributors Ltd. [1969] E.A. 696
    [1969] E.A. 696
  • Attorney General & Another – Versus - Andrew Mwaura Githinji & another [2016] eKLR
    [2016] eKLR
  • Kharisa Kyango – Versus - Law Society of Kenya (2014) eKLR
    (2014) eKLR
  • Owners of Motor Vessel "Lilian S" – Versus - Caltex Oil (Kenya) Limited (1989) IKLR
    (1989) 1 KLR
  • County Government of Migori – Versus I N B Management IT Consultant Limited (2019) eKLR
    (2019) eKLR
  • Hon (Lady) Justice Kalpana H Rawal Versus Judicial Service Commission and others, Supreme Court Civil Application No. 11 of 2016
    Supreme Court Civil Application No. 11 of 2016
  • Ocheja Immanuel Dangama – Versus - Hon. Atoi Aidoko Aliaswan and 4 others, Supreme Court of Nigeria Case No. 11 of 2012
    No. 11 of 2012
  • BWM – Versus - JMC (2018) eKLR
    (2018) eKLR
  • Aviation & Allied Workers Union Kenya - Versus - Kenya Airways Ltd & 3 Others, Application No. 50 of 2014, [2015] eKLR
    Application No. 50 of 2014, [2015] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya and the Environment and Land Court Act

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, "Zipporah Njoki Kangara v Rock and Pure Limited & 3 others [2021] KEELC 395 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/395/eng@2021-12-16

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