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ELCDismissedNot stated in the judgment as provided· [2022] KEELC 121 (KLR)

Conpak Industries Ltd v Muturi (Miscellaneous Application E041 of 2021) [2022] KEELC 121 (KLR)

Environment and Land Court
28 April 2022
1,286 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed an attempt to strike out a land dispute suit, confirming that substance matters more than procedure.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi, delivered by E. K. Wabwoto J on 28th April 2022, determines the Respondent's preliminary objection dated 13th October 2021 directed at the Applicant's suit instituted by notice of motion under sections 152A and 152E of the Land Act. The objection raised four grounds: lack of jurisdiction; impropriety of initiating a suit by notice of motion contrary to Order 3 Rule 1 of the Civil Procedure Rules, 2010; prematurity for failure to exhaust other dispute resolution avenues; and consequent incompetence and abuse of process warranting striking out with costs. The court first set out the settled definition of a preliminary objection from Mukisa Biscuit and related authorities, including Nitin Properties, Oraro v Mbaja, Hassan Ali Joho and IEBC v Jane Cheperenger. On jurisdiction, the court held that the dispute fell squarely within Article 162(2)(b) of the Constitution, section 13 of the Environment and Land Court Act and section 150 of the Land Act, which confers exclusive jurisdiction on the ELC; since section 2 of the Land Act defines 'court' to include the ELC, this limb failed. On mode of institution, the court observed that sections 152A and 152E do not prescribe the procedure for approaching the court, and that regardless of the procedure adopted, what matters is that the affected party be accorded an opportunity to be heard; this limb also failed. The court noted the Applicant had complied with section 152E of the Land Act. In the end, the preliminary objection was found to lack merit and was dismissed, with costs ordered to abide the outcome of the suit.

Key legal issues

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01

Whether the ELC has jurisdiction over the dispute

Holding

The court has jurisdiction; the dispute relates to land within Article 162(2)(b) and section 13 of the ELC Act, and section 150 of the Land Act gives the ELC exclusive jurisdiction

Reasoning

The motion was brought under sections 152A and 152E of the Land Act, which defines 'court' to include the Environment and Land Court. The cause of action concerned land, a matter squarely within the court's jurisdiction under Article 162(2)(b) of the Constitution and section 13 of the ELC Court Act, and section 150 of the Land Act confers exclusive jurisdiction on the ELC over disputes concerning land under the Act.

p. 3
02

Whether a suit can be instituted by a notice of motion

Holding

The applicant cannot be faulted on the procedure adopted; a suit may properly be instituted by notice of motion where the applicable law so provides, and the essential requirement is that the affected party be heard

Reasoning

Sections 152A and 152E of the Land Act do not clearly prescribe how a party ought to approach the court for relief. Relying on authority that a suit may be instituted by notice of motion where so provided by law, the court held that regardless of the procedure adopted, the critical requirement is that the affected party be accorded an opportunity to be heard. Procedural form could not defeat the suit.

p. 3
03

Whether the suit was premature for failure to exhaust other dispute resolution avenues

Holding

The objection on exhaustion was subsumed within the failed limbs; the applicant had complied with section 152E of the Land Act

Reasoning

The Respondent argued the suit was premature and defective for failure to exhaust other dispute resolution avenues. The Applicant demonstrated compliance with the statutory pre-conditions under section 152E of the Land Act. Having found the court seized of jurisdiction and the mode of initiation proper, the court found the objection without merit and dismissed it.

p. 3

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained or if judicial discretion is sought
  • Where statutory provisions do not prescribe the procedure for approaching the court, what matters is that the affected party is accorded an opportunity to be heard

Court orders

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  1. 1.The preliminary objection dated 13th October 2021 is dismissed
  2. 2.Costs to abide the outcome of the suit
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act; Section 150 of the Land 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, "Conpak Industries Ltd v Muturi (Miscellaneous Application E041 of 2021) [2022] KEELC 121 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/121/eng@2022-04-28

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