Delmonte (K) Limited v National Land Commission & another; Kandara Residents Association & 2 others (Interested Parties) [2021] KEELC 2002 (KLR)
The bottom line
#The Environment and Land Court in Murang'a dismissed a bid to stop Kandara residents' land rights case, because the objection required checking facts, not just law.
What this practically means
#Executive summary
#Key legal issues
#What constitutes a Preliminary Objection
The objection must be founded on a settled and crisp point of law; objections requiring ascertainment of facts or probing of evidence do not qualify
Adopting the Mukisa Biscuits definition, later affirmed by the Supreme Court in IEBC v Jane Cheperenger, the Court held that a Preliminary Objection is in the nature of a demurrer raising a pure point of law argued on assumed facts. Where disputed facts must be examined - as here, where similarity of subject matter between the Malindi Petition and this petition was disputed - the objection fails as a Preliminary Objection and should instead be pursued by formal application.
Whether the sub judice ground under section 6 of the Civil Procedure Act was properly raised as a Preliminary Objection
No - determining whether the instant petition is sub judice vis-à-vis the Malindi Petition requires perusal of pleadings and comparison of issues, which involves disputed facts
The Court observed that it would have to peruse the Malindi Petition and determine whether the subject matters were similar, that staying the suit would not dispose of the matter, and that disputed facts existed - notably the Petitioner's contention that although the constitutionality of section 15 of the NLC Act was in issue in both matters, its angle differed from that in the Malindi Petition. The totality of these observations led to the conclusion that the objection was not a pure point of law.
Whether the suit is res judicata under section 7 of the Civil Procedure Act on account of the Thika ELC Petition No. 3 of 2019
The res judicata question cannot be determined as a Preliminary Objection because it calls for examination of evidence
While acknowledging that res judicata is founded on public policy, aimed at finality of litigation and avoiding double harassment of litigants, the Court held that determining whether the Thika case rendered this petition res judicata would require the Court to look at the evidence. Since facts had to be ascertained, the issue was ousted from the realm of a pure point of law and the Preliminary Objection could not succeed on this ground either.
Legal principles established
#- A Preliminary Objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained or if the exercise of judicial discretion is sought
- Objections involving investigation of facts, such as sub judice and res judicata claims requiring comparison of pleadings, should be brought through a formal application rather than a Preliminary Objection
Court orders
#- 1.The Preliminary Objection dated 25th September 2020 is dismissed
- 2.Costs of the Preliminary Objection to the Petitioner
- Jurisdiction invoked
- Constitution of Kenya, Article 165(2) as read with Article 22-23 (enforcement of fundamental rights) and Article 67(3) - petition on contravention of fundamental rights in proceedings before the National Land Commission's Committee on Historical Land Injustices
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Delmonte (K) Limited v National Land Commission & another; Kandara Residents Association & 2 others (Interested Parties) [2021] KEELC 2002 (KLR)", Case Analysis (2021). Murang'a ELC Petition (Amended Petition dated 4/04/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2002/eng@2021-09-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.