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ELCOtherNot stated in the excerpt provided· [2021] KEELC 4666 (KLR)

George Mkuzi v Modern Coast Builders & Contractors Limited & another [2021] KEELC 4666 (KLR)

Environment and Land Court
22 January 2021
1,327 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 is a ruling of the Environment and Land Court at Malindi (J.O. Olola, J) dated 22nd January 2021 on the Defendants' Notice of Preliminary Objection dated 20th June 2019. The Plaintiff, George Mkuzi, sued Modern Coast Builders & Contractors Ltd and Haroon Shahid Butt seeking vacant possession of two parcels of land being subdivisions of Title No. Mgumo Patsa/Mazeras/632, demolition of structures, eviction, a permanent injunction against trespass, and general damages for loss of user, trespass, excavation and destruction of crops and graves. The Plaintiff alleges the Defendants encroached on his parcels on or about 31st August 2017, excising about a quarter acre. By their preliminary objection, the Defendants urged that the court lacked jurisdiction under Section 18(2) of the Land Registration Act, 2012 because the suit constituted a boundary dispute which had not been determined under Section 18. The court applied the Mukisa Biscuits test, holding that a preliminary objection must be a pure point of law not requiring ascertainment of facts. On the pleadings, the 1st Defendant denied owning any land in the area and the 2nd Defendant asserted his boundaries were well delineated with beacons and never disputed; no Defendant claimed the parcel claimed by the Plaintiff. The court therefore found the claim was one of trespass rather than a boundary dispute, and that the factual questions required evidence at trial. The preliminary objection was dismissed with costs to the Plaintiff. The Plaintiff's substantive claim remains pending for trial.

Key legal issues

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01

Whether the suit is a boundary dispute excluded from the court's jurisdiction by Section 18(2) of the Land Registration Act, 2012

Holding

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.

Reasoning

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.

p. 2
02

Whether the preliminary objection was a pure point of law

Holding

The objection failed because the facts constituting the dispute are not admitted and require evidence at trial.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Defendants' Notice of Preliminary Objection dated 20th June 2019 is dismissed
  2. 2.Costs of the preliminary objection to the Plaintiff/Respondent

Authorities

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Legislation

  • Land Registration ActSection 18(2)
  • Land Registration ActSection 18

Cases cited (3)

  • Mumo Matemu –vs- Trusted Society of Human Rights Alliance and 5 Others
    (2013) eKLR
  • Owners of the Motor Vessel 'Lillian S' –vs- Caltex Oil (Kenya) Ltd
  • Mukisa Biscuits Manufacturing Company Ltd -vs- West End Distributors Ltd
    (1969) EA 696
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; objection raised under Section 18(2) of the Land Registration Act, 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.