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ELCDismissedNot stated in the ruling· [2021] KEELC 2763 (KLR)

James Kariuki Kamau & another v John Kipketer Ruto & 3 others [2021] KEELC 2763 (KLR)

Environment and Land Court
16 June 2021
2,172 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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This ruling of the Environment and Land Court at Eldoret (M. A. Odenny, J) determined a notice of preliminary objection dated 27th February 2017 by the 2nd and 3rd Defendants, supplemented by a further notice of 3rd July 2018, seeking striking out of the Plaintiffs' suit. The objections were fourfold: that the plaint disclosed no cause of action because the immovable property was unidentified; that the verifying affidavit was unattested by a commissioner; that the court lacked jurisdiction, the claim being founded on a grant of letters of administration in the estate of Zipporah Njeri Kamau and belonging in the Family Division; and that the Plaintiffs lacked locus standi for want of a confirmed grant. The respondents filed no submissions. The court found that although the original plaint omitted particulars of the suit land and a verifying affidavit, the amended plaint filed on 30th January 2018 cured both defects, and the Court of Appeal's guidance discourages the draconian step of striking out a suit where a defect has been cured without prejudice. On jurisdiction, the encroachment claims (cultivation, leasing, fencing, denial of access, grazing and interference with enjoyment of the land) fell squarely within Article 162(2)(b) of the Constitution and section 13(2) of the Environment and Land Court Act. On locus standi, applying Mukisa Biscuit, confirmation of a grant is evidentiary and cannot be resolved on a preliminary objection. The preliminary objection was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the plaint discloses a cause of action where the suit land was not identified in the original plaint

Holding

The objection fails because the amended plaint cured the omission

Reasoning

The court noted the original plaint did not specify the details of the suit land, which appeared only in the plaintiff's statement. However, the amended plaint filed on 30th January 2018 cured the defect. Under Order 2 Rule 15(1)(a) a pleading may be struck out where it discloses no reasonable cause of action, but the omission having been cured, there was no basis to strike out.

02

Whether an unattested verifying affidavit renders the suit a nullity

Holding

No, the verifying affidavit in the amended plaint was attested and the court will not strike out a suit on a cured technical defect

Reasoning

Order 3 Rule 2 and Order 4 Rules 1 and 2 require a plaint to be accompanied by a verifying affidavit. The original plaint lacked one, but the amended plaint included one attested by a Commissioner of Oaths. Relying on the Court of Appeal's guidance, the court held that striking out is a draconian option where the defect has been cured and no prejudice occasioned.

p. 3
03

Whether the Environment and Land Court has jurisdiction over the claim

Holding

Yes, the alleged encroachments are disputes relating to land within section 13(2) of the ELC Act

Reasoning

Counsel argued the claim was founded on a grant of letters of administration and belonged in the Family Division. The court examined the amended plaint, which pleaded encroachment, cultivation, leasing, fencing, denial of access, grazing and interference with enjoyment of the suit land. Such disputes relating to title, tenure and interests in land fall within Article 162(2)(b) and section 13(2) of the ELC Act.

p. 4
04

Whether want of a confirmed grant can be raised as a preliminary objection on locus standi

Holding

No, confirmation of a grant is an evidentiary issue that cannot be resolved on a preliminary objection

Reasoning

Applying the Mukisa Biscuit test, a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded are correct; it cannot be raised if facts must be ascertained. Whether the plaintiffs hold a confirmed grant requires production of evidence, so the objection is unsuitable for determination as a preliminary point.

p. 4

Legal principles established

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  • A defect in pleadings that has been cured by subsequent amendment does not justify striking out a suit; the court will lean towards sustaining a suit absent prejudice to the defendant
  • An issue requiring ascertainment by production of evidence, such as confirmation of a grant of letters of administration, cannot be determined by way of a preliminary objection

Court orders

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  1. 1.The preliminary objection dated 27th February 2017 (and the further objection of 3rd July 2018) is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 2 Rule 15(1)(a)
  • Civil Procedure Rules 2010Order 3 Rule 2
  • Civil Procedure Rules 2010Order 4 Rules 1 & 2
  • Civil Procedure Rules 2010Order 19 Rule 7
  • Constitution of Kenya 2010Article 162(2)(b)
  • Environment and Land Court ActSection 13(2)

Cases cited (6)

  • Monica Jeruto Ruto v Simon Ngugi & 8 others [2018] eKLR
    [2018] eKLR
  • Daykio Plantations Limited v National Bank of Kenya Limited & 2 others [2019] eKLR
    ELC CASE NO 222 OF 2018
  • Law Society of Kenya vs Commissioner of Lands & Others
    Nakuru High Court Civil Case No. 464 of 2000
  • Alfred Niau and Others vs City Council of Nairobi
    (1982) KAR 229
  • Kenya Commercial Finance Company Limited vs Richard Akwesera Onditi
    Nairobi Civil Application No. 329 of 2009
  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
Jurisdiction invoked
Article 162(2)(b) of the Constitution read with section 13(2) of 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, "James Kariuki Kamau & another v John Kipketer Ruto & 3 others [2021] KEELC 2763 (KLR)", Case Analysis (2021). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2763/eng@2021-06-16

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