Kenya National Highways Authority v Geoorge Kirimana Abuaba [2021] KEELC 2603 (KLR)
The bottom line
#A Kenyan court confirmed preliminary objections can be raised any time, but failed boundary-dispute objections collapse when pleadings contradict them.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of a preliminary objection
The preliminary objection was properly raised despite being filed 11 months after the suit, since a preliminary objection can be raised at any time while the suit is active.
Relying on the quoted authorities, the court held that although a preliminary objection is preferably raised early, it may be raised at any time during active proceedings. The respondent's argument that the objection was an afterthought was therefore irrelevant, and the objection was properly before the trial court.
Whether the suit was a boundary dispute ousting the court's jurisdiction under Section 18(2) of the Land Registration Act
The suit was not a pure boundary dispute; the trial court had jurisdiction and the appeal was dismissed.
Although the plaint in one paragraph sought ascertainment of the boundary, the prayers went beyond boundary determination to include permanent injunction and damages. Moreover, the appellant's own defence denied the existence of a boundary dispute, characterising the issue as reclamation of a road reserve. Being bound by its pleadings, the appellant could not contradictory raise a boundary-dispute objection. There was also uncertainty as to the applicable registration regime.
Distinguishing the authorities relied on by the appellant
The cases cited by the appellant were distinguishable on the pleadings and facts.
In Muchilwa the pleadings clearly disclosed a boundary dispute, and in William Gacani Mbaria the Land Registrar had already determined the boundary which the plaintiff disregarded. Neither scenario matched the present case, where the claim was not a pure boundary dispute and the appellant's pleadings disclaimed one.
Legal principles established
#- A preliminary objection on a point of law may be raised at any stage of the proceedings, though preferably at the earliest opportunity
- A preliminary objection must be a pure point of law, not blurred with facts requiring evidence
- Under Section 18(2) of the Land Registration Act, 2012, courts cannot entertain boundary disputes over registered land unless the boundaries have first been determined under that section
- A party is bound by its pleadings and cannot blow hot and cold
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- On appeal from
- Magistrates' Court (trial court)
- Not stated
- Jurisdiction invoked
- First appeal from the magistrates' court under the applicable appeal provisions; appeal against dismissal of a preliminary objection on jurisdiction under Section 18(2) of the Land Registration Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Highways Authority v Geoorge Kirimana Abuaba [2021] KEELC 2603 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2603/eng@2021-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.