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ELCDismissedNot stated in the excerpt· [2022] KEELC 512 (KLR)

John Riungu M’mutea & 5 others v Gladys Njeri Waruiru & 2 others [2022] KEELC 512 (KLR)

Environment and Land Court
23 March 2022
CNC. K. Nzili
1,289 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Meru dismissed a preliminary objection, confirming that land claims involving disputed facts must be heard on their merits, not thrown out early.

What this practically means

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Executive summary

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The 1st and 2nd defendants raised a preliminary objection arguing that the plaintiffs' suit - a clan claim to L.R Kiamuri A/611 under adjudication, alleging fraud, collusion and historical injustices in the adjudication process - was time barred under the Limitation of Actions Act and the Public Authorities Limitation Act, and was improperly before the court for failure to exhaust internal dispute mechanisms under the Land Consolidation and Land Adjudication Acts. The plaintiffs countered that the objection did not meet the Mukhisa Biscuits threshold of a pure point of law and that the court had jurisdiction under Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act. The court held that a preliminary objection must rest on facts that are not contested; here, key facts - the causes of action, when they arose, the plaintiffs' locus standi and clan membership, and when the historical injustices occurred - were disputed between the parties. The 3rd defendant had filed no defence despite facing serious allegations concerning clan land rights and irregularities in adjudication, and a search indicated LDT Case No. 90 of 2005 remained pending. The court noted the new constitutional dimension of community land rights and that adjudication statutes must be construed to conform with the Constitution. The preliminary objection was dismissed with costs, leave was granted to the 3rd defendant to file a defence within 21 days, and the parties were directed to comply with Order 11 within 45 days.

Key legal issues

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01

Whether the preliminary objection on limitation and non-exhaustion could succeed on the pleadings

Holding

The objection failed because the facts were contested; limitation, when the cause of action arose, locus standi and historical injustices were all matters of fact not agreed between the parties.

Reasoning

The court applied the Mukhisa Biscuits test as affirmed by the Supreme Court in Aviation & Allied Workers Union: a preliminary objection must be a pure point of law with no contest as to facts. Here the plaintiffs' pleaded facts were denied by the 1st and 2nd defendants, and the 3rd defendant had filed no defence at all. Issues such as when the cause of action arose, the plaintiffs' clan membership and when historical injustices arose required ascertainment of facts, so the objection could not be sustained.

p. 2
02

Jurisdiction of the ELC over adjudication-related clan claims

Holding

The court indicated it had jurisdiction to hear the matter, noting that Land Disputes Tribunal matters are now brought before the ELC following repeal of the Land Disputes Tribunal Act 1990, and that adjudication statutes must be construed in conformity with the Constitution.

Reasoning

The court noted the constitutional anchor of its jurisdiction under Article 162(2) and Section 13 of the ELC Act as urged by the plaintiffs. It also observed that post-2010 legislation on community land and the National Land Commission gave community rights and historical injustices a new dimension, requiring the Limitation and Adjudication statutes to be read with alterations necessary to conform with the Constitution.

p. 2

Legal principles established

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  • A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot succeed where facts are contested.

Court orders

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  1. 1.The notice of preliminary objection dated 21.1.2020 is dismissed with costs
  2. 2.Leave granted for the 3rd defendant to file a defence within 21 days from the date of the ruling
  3. 3.Parties to comply with Order 11 within 45 days from the date of the ruling

Authorities

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Legislation

  • Limitation of Actions ActSection 4(2)
  • Public Authorities Limitation Act Cap 39Section 3(1)
  • Land Consolidation Act Cap 283
  • Land Adjudication Act Cap 284Sections 26 and 29
  • Constitution of Kenya 2010Article 162(2); Article 262 read with Schedule 6 Rule 7
  • Environment and Land Court Act 2011Section 13
  • Land Disputes Tribunal Act 1990
  • Community Land Act
  • Land Act 2012
  • Land Registration Act 2012
  • Civil Procedure RulesOrder 11

Cases cited (6)

  • Francis Munyiri Kamau –vs- Margaret Nyawira & 2 Others
    [2008] eKLR
  • Kiroket Ole Punyua –vs- Umash Ole Mwanik & 2 Others
    [2021] eKLR
  • Republic –vs- Land Adjudication Office Tururung Adjudication Section Elgoyo Marakwet & Another Exparte Biyaa Clan
    [2021] eKLR
  • Mukhisa Biscuits Manufacturing Ltd –vs- Wes End Distributors Ltd
    [1969] E.A 697
  • Justus Tureti Obara –vs- Peter Koipetai Nengisoi
    [2014] eKLR
  • Aviation & Allied Workers Union Kenya –vs- kenay Airways Ltd & 3 Others
    [2015] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act 2011

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, "John Riungu M’mutea & 5 others v Gladys Njeri Waruiru & 2 others [2022] KEELC 512 (KLR)", Case Analysis (2022). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/512/eng@2022-03-23

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