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ELCDismissedMurang'a ELC Petition (Amended Petition dated 4/04/2019)· [2021] KEELC 2002 (KLR)

Delmonte (K) Limited v National Land Commission & another; Kandara Residents Association & 2 others (Interested Parties) [2021] KEELC 2002 (KLR)

Environment and Land Court
15 September 2021
2,034 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This Ruling by the Environment and Land Court at Murang'a (J G Kemei, J) determined a Preliminary Objection dated 25th September 2020 raised by the 1st and 2nd Interested parties in an amended petition concerning alleged contravention of the Petitioner's fundamental rights in proceedings before the National Land Commission's Committee on Historical Land Injustices in Amended Complaint NLC/HLI/004/2017. The objection invoked sections 6 and 7 of the Civil Procedure Act, contending that the petition was sub judice in relation to the Malindi ELC Petition No. 16 of 2016 (consolidated with ELC Petition 291 of 2016) and res judicata by virtue of Thika ELC Petition No. 3 of 2019, in which section 15 of the National Land Commission Act was held constitutional. The 1st Respondent supported the objection; the Petitioner and 3rd Interested party opposed it, arguing that the doctrines required ascertainment of facts, were improperly raised in a constitutional petition, and that the objection was filed late to delay the main suit. Adopting the Mukisa Biscuits definition as affirmed by the Supreme Court in Jane Cheperenger, the Court found that the objection required perusal of pleadings and examination of evidence, particularly on similarity of subject matter and the res judicata effect of the Thika case, and was therefore not a pure point of law. The Court concluded that this was not one of the clearest cases for a Preliminary Objection and dismissed it with costs on 15th September 2021.

Key legal issues

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01

What constitutes a Preliminary Objection

Holding

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

Reasoning

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.

p. 2
02

Whether the sub judice ground under section 6 of the Civil Procedure Act was properly raised as a Preliminary Objection

Holding

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

Reasoning

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.

p. 3
03

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

Holding

The res judicata question cannot be determined as a Preliminary Objection because it calls for examination of evidence

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Preliminary Objection dated 25th September 2020 is dismissed
  2. 2.Costs of the Preliminary Objection to the Petitioner

Authorities

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Legislation

  • Civil Procedure Actsection 6
  • Civil Procedure Actsection 7
  • National Land Commission Actsection 15 (3)(b)(i) & (ii)
  • Constitution of KenyaArticle 67(3)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Cases cited (12)

  • Supreme Court Advisory Opinion Reference 1 of 2017; Kenya National Human Rights Commission v Attorney General; Independent Electoral & Boundaries Commission & 16 others
  • Evans Odhiambo Kidero v Ethics and Anti-Corruption Commission & 3 others [2020] eKLR
    [2020] eKLR
  • Lotta vs Tanaki (2003) 2 EA 556
    (2003) 2 EA 556
  • Gathoni Park Farm Limited v National Land Commission & 7 others [2019] eKLR
    [2019] eKLR
  • George Kamau Kimani & 4 others –vs- County Government of Trans Nzoia & Anor. [2014] eKLR
    [2014] eKLR
  • Kandara Residence Association & another v Ananas Holdings Limited & 4 others; Director of Survey & 3 others (Interested Parties) [2020] eKLR
    [2020] eKLR
  • John Florence Maritime Services Limited & another v Cabinet Secretary of Transport and Infrastructure & 3 others [2015] eKLR
    [2015] eKLR
  • Kivanga Estates Limited v National Bank of Kenya Limited [2017] eKLR
    [2017] eKLR
  • Kenya Wildlife Service v James Mutembei [2019] eKLR
    [2019] eKLR
  • Mukisa Biscuits (case)
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others Civil Application No. 36 of 2014 [2015] eKLR
    Civil Application No. 36 of 2014 [2015] eKLR
  • Nicholas Njeru Vs the Attorney General and 8 Others Civil Appeal No. 110 of 2011 [2013] eKLR
    Civil Appeal No. 110 of 2011 [2013] eKLR
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

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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, "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.