George Mkuzi v Modern Coast Builders & Contractors Limited & another [2021] KEELC 4666 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the suit is a boundary dispute excluded from the court's jurisdiction by Section 18(2) of the Land Registration Act, 2012
The suit is not a boundary dispute; none of the defendants claims the parcel claimed by the plaintiff, and the defendants assert their boundaries are well delineated with no dispute as to them.
The court examined the pleadings and noted the 1st defendant denies owning any land in the disputed area while the 2nd defendant pleads his parcels do not encroach on the plaintiff's land and their boundaries are clearly marked with beacons. Since no defendant claims the plaintiff's parcels, the claim of trespass and excavation cannot be equated to a boundary dispute; whether the defendants encroached is a factual question requiring evidence at trial.
Whether the preliminary objection was a pure point of law
The objection failed because the facts constituting the dispute are not admitted and require evidence at trial.
Applying the Mukisa Biscuits test, the court held that a preliminary objection cannot be raised where facts must be ascertained. A perusal of the rival pleadings showed the facts of the dispute were not admitted, and the factual details would require evidence to be adduced and proved at trial, so the objection could not dispose of the suit as a pure point of law.
Legal principles established
#- Where a court has no jurisdiction, it has no basis for judicial proceedings or orders, and questions of jurisdiction should be raised and determined at the earliest opportunity.
- A preliminary objection must rest on a pure point of law arising from the pleadings and cannot succeed where facts require ascertainment by evidence.
Court orders
#- 1.The Defendants' Notice of Preliminary Objection dated 20th June 2019 is dismissed
- 2.Costs of the preliminary objection to the Plaintiff/Respondent
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; objection raised under Section 18(2) of the Land Registration Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "George Mkuzi v Modern Coast Builders & Contractors Limited & another [2021] KEELC 4666 (KLR)", Case Analysis (2021). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4666/eng@2021-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.