Peter Adir and Lodwar and Pentecostal Assemblies of God Kenya Church District Committee & another v Deborah Tarash Sirjoosingh (Sued for and on Behalf of Pentecostal Assembles of Canada) & another [2021] KEELC 4283 (KLR)
The bottom line
#A Kenyan land court threw out a church dispute challenge because it relied on facts needing evidence, not pure points of law.
What this practically means
#Executive summary
#Key legal issues
#Whether the 11 grounds in the preliminary objection qualify as pure points of law
Most of the grounds require evidence to be adduced and do not qualify as preliminary objections; grounds 2, 5 and 6 require exhaustive examination of the PAG-K Constitution, and grounds 3 and 4 demand examination of evidential documents.
Applying Mukisa Biscuit, the court held that determining the capacity of the 1st plaintiff, the trusteeship of the 2nd plaintiff and the instructions to the advocate would require examining the church's governance documents, i.e. ascertainment of facts. Such matters cannot dispose of the suit at the preliminary objection stage and must await trial.
Whether the court has jurisdiction as an environment and land court
Ground 10 fails because the suit seeks a declaration over ownership of land; the defendants' own ground 7 admitted the dispute concerns 21 acres of land, and a litigant cannot blow hot and cold.
The court found the submission that the suit was merely about an apprehension of sale inconsistent with the defendants' own pleading that ownership of the 21 acres was in the name of PAG Namoruputh Church and the Health Centre. The plaint's prayers for declaratory relief over land bring the matter within Article 162(2)(b) and Section 13 of the ELC Act.
Effect of the defendants' admissions in the preliminary objection
Grounds 7, 8 and 9 contain admissions beneficial to the plaintiffs that the land is not contested by the defendants, and upholding the objection would ignore the admission that the 1st plaintiff has an interest in the suit land.
The court reasoned that if the defendants do not contest the plaintiffs' claim that the land belongs to the 2nd plaintiff, the proper course was express admission rather than a multi-limbed preliminary objection taking the parties and the court on a circuitous route. Upholding the objection would not serve justice.
Whether affidavit evidence of a non-party could support the preliminary objection
The affidavit of Patrick Lihanda, described as General Superintendent of PAG-Kenya, is of no aid because he is a stranger not party to the proceedings, and the preliminary objection was not ordered to be tried by way of affidavit evidence.
Much of the factual material supporting the objection came from Lihanda's affidavit. Since he was not a party and the objection was a pure point of law not converted into an evidentiary application, that material could not be relied upon at this stage.
Legal principles established
#- A preliminary objection must raise a pure point of law; it cannot be raised where any fact has to be ascertained or where the exercise of judicial discretion is sought.
- A non-party's affidavit evidence is of no aid to a preliminary objection that has not been ordered to be tried by way of application supported by affidavit evidence.
- A litigant cannot blow hot and cold at the same time; a defendant cannot deny that a dispute concerns land while simultaneously arguing that the court lacks land jurisdiction.
Court orders
#- 1.The entire preliminary objection comprising of 11 grounds is dismissed with costs to the plaintiffs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act (as urged by the plaintiffs; jurisdiction contested by the defendants)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Adir and Lodwar and Pentecostal Assemblies of God Kenya Church District Committee & another v Deborah Tarash Sirjoosingh (Sued for and on Behalf of Pentecostal Assembles of Canada) & another [2021] KEELC 4283 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4283/eng@2021-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.