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ELCDismissedOriginating Summons dated 18th February 2020 (Kakamega ELC)· [2021] KEELC 411 (KLR)

Agnes Nyaloya Lukwa (suing as the legal representative of the estate of the late Julius Muhambi Amayi (Dcd) v Antony Panga Imbuusi [2021] KEELC 411 (KLR)

Environment and Land Court
14 December 2021
DOD. O. Ohungo
1,434 words in judgment
View original judgmentRead on Kenya Law Watch case
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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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The applicant, Agnes Nyaloya Lukwa, as legal representative of the estate of the late Julius Muhambe Amayi, brought an Originating Summons filed on 18th February 2020 claiming title to land parcel Idakho/Shikulu/2339 by adverse possession, asserting that the respondent's title had been extinguished after 12 years of possession from about 1995 and seeking an order for transfer. The respondent, Antony Panga Imbuusi, filed a Notice of Preliminary Objection dated 13th July 2021 seeking to strike out the summons for failure to annex a certified extract of title as required by Order 37 Rule 7(2) of the Civil Procedure Rules. In submissions, the respondent argued the non-compliance was fatal and that the suit offended Section 7 of the Limitation of Actions Act. The applicant countered that striking out is a drastic remedy, invoking Article 159(2)(d) of the Constitution, Section 19 of the Environment and Land Court Act and Section 1A of the Civil Procedure Act, and urged that any defect could be cured under Order 37 Rule 18. The court, applying Mukisa Biscuit, held that a matter requiring the exercise of judicial discretion cannot ground a preliminary objection, and that Order 37 Rule 18 empowers the court to cure non-compliance with Rule 7(2) in furtherance of substantive justice. The limitation argument was dismissed as an afterthought. The objection was dismissed with costs in the cause, and the applicant was given 30 days to file a supplementary affidavit annexing a certified extract of title, failing which the suit would stand struck out with costs to the respondent.

Key legal issues

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01

Definition and validity of a preliminary objection

Holding

The objection on compliance with Order 37 Rule 7(2) fails because the remedy involves judicial discretion, which cannot ground a preliminary objection

Reasoning

Applying Mukisa Biscuit, a preliminary objection must be a pure point of law argued on assumed facts without exercise of discretion. Since the court retains discretion under Order 37 Rule 18 to cure the missing certified extract of title and to give directions, the objection is not a valid preliminary objection and must be dismissed.

p. 2
02

Effect of non-compliance with Order 37 Rule 7(2)

Holding

Non-compliance should not lead to automatic striking out; the applicant was given 30 days to comply

Reasoning

Order 37 Rule 18 empowers the court to order further evidence, give just directions and make amendments. Read with Article 159(2)(d) of the Constitution and Section 19 of the ELC Act, substantive justice requires giving the applicant an opportunity to remedy the defect rather than striking out the suit immediately.

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03

Limitation of Actions Act argument

Holding

The Section 7 limitation argument was rejected as an afterthought since it was not part of the preliminary objection

Reasoning

The respondent's submission that the suit, filed 25 years after the 1995 agreement, offended Section 7 of the Limitation of Actions Act had no foundation in the pleaded preliminary objection, which was confined to non-compliance with Order 37 Rule 7(2). The court declined to entertain it.

p. 2

Legal principles established

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  • A preliminary objection cannot be founded on a matter in which the court has discretion
  • The court has discretion to remedy non-compliance with Order 37 Rule 7(2) before trial, in line with substantive justice

Court orders

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  1. 1.Notice of Preliminary Objection dated 13th July 2021 dismissed, costs in the cause
  2. 2.Applicant to file and serve within 30 days a supplementary affidavit annexing a certified extract of title to Idakho/Shikulu/2339
  3. 3.In default of compliance, the suit to stand struck out with costs to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7(2)
  • Civil Procedure RulesOrder 37 Rule 18
  • Constitution of KenyaArticle 159(2)(d)
  • Environment and Land Court ActSection 19
  • Limitation of Actions ActSection 7
  • Civil Procedure ActSection 1A

Cases cited (4)

  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Wesley Kipyegon Bor & 8 others v Richard Pares & 3 others
    [2020] eKLR
  • Essolly Enterprises Limited v Benjoh Amalgamated Limited
    [2019] eKLR
  • Josiah Njoroge Njuguna v Ingobor Farm Co. (Registered Trustees) & 3 others
    [2018] eKLR
Jurisdiction invoked
Environment and Land Court Act, Section 19 (substantive justice jurisdiction)

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, "Agnes Nyaloya Lukwa (suing as the legal representative of the estate of the late Julius Muhambi Amayi (Dcd) v Antony Panga Imbuusi [2021] KEELC 411 (KLR)", Case Analysis (2021). Originating Summons dated 18th February 2020 (Kakamega ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/411/eng@2021-12-14

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