James Kariuki Kamau & another v John Kipketer Ruto & 3 others [2021] KEELC 2763 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the plaint discloses a cause of action where the suit land was not identified in the original plaint
The objection fails because the amended plaint cured the omission
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.
Whether an unattested verifying affidavit renders the suit a nullity
No, the verifying affidavit in the amended plaint was attested and the court will not strike out a suit on a cured technical defect
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.
Whether the Environment and Land Court has jurisdiction over the claim
Yes, the alleged encroachments are disputes relating to land within section 13(2) of the ELC Act
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.
Whether want of a confirmed grant can be raised as a preliminary objection on locus standi
No, confirmation of a grant is an evidentiary issue that cannot be resolved on a preliminary objection
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.
Legal principles established
#- 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
#- 1.The preliminary objection dated 27th February 2017 (and the further objection of 3rd July 2018) is dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution read with section 13(2) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.