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ELCDismissedELC Originating Summons (Makueni) – notice of preliminary objection dated 6th April 2021· [2022] KEELC 1608 (KLR)

Joseph Muindi Mutua & 5 others v Boniface M Muunda & another [2022] KEELC 1608 (KLR)

Environment and Land Court
8 February 2022
3,125 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 over a missing filing form, ruling the error was a fixable technicality.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Makueni (Mbogo C.G, J) determined a notice of preliminary objection dated 6th April 2021 raised by the 1st respondent, Boniface M Muunda, against an Originating Summons dated 31st August 2020 in which the applicants, led by Joseph Muindi Mutua, alleged that the 1st respondent had blocked access roads to their land parcels (Mbooni/Itetani/574, 589, 777, 778, 779, 780, 781 and 1062) and sought injunctive relief. The respondent raised seven grounds: non-compliance with Order 1 Rules 8 and 13 (no written authority to plead); lack of locus standi in suits touching deceased registered proprietors; impropriety of the Order 37 summons; failure of the injunction test under Giella v Cassman Brown; abatement of a prior suit (CMCC No. 394 of 2007) under Order 24 Rule 7; and res judicata by virtue of SRMCC No. 5 of 2007, which adopted an award of the Makueni District Land Disputes Tribunal Case No. 50 of 2006. Applying Mukisa Biscuits, Oraro v Mbaja and related authorities, the court held that only ground one raised a pure point of law; the remaining grounds required ascertainment of facts or judicial discretion. On ground one, the court found the omission of the written authority a curable procedural slip causing no prejudice to the respondent, and declined to strike out the summons. The court also condemned the respondent's attempt to introduce evidence through written submissions, citing Daniel Toroitich arap Moi v Mwangi Stephen Muriithi. The preliminary objection was dismissed with costs.

Key legal issues

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01

Whether the notice of preliminary objection met the Mukisa Biscuits threshold

Holding

Only ground one (Order 1 Rules 8 and 13) qualified as a pure point of law; the remaining six grounds required ascertainment of facts or exercise of discretion and did not qualify

Reasoning

The court restated the Mukisa Biscuits definition and Oraro v Mbaja, holding that a preliminary objection must stem from the pleadings and raise a pure point of law with no facts to be ascertained. Grounds two to seven required factual inquiry or discretion (e.g. injunction merits, res judicata) and were therefore not proper preliminary objections.

p. 4
02

Whether failure to file a written authority under Order 1 Rule 13(2) was fatal

Holding

No. The defect was a procedural slip causing no prejudice and could be regularised

Reasoning

The 1st applicant deponed that he had authority to swear the supporting affidavit for the other applicants, complying partially with Order 1 Rule 13. Failure to file the written authority caused no demonstrated prejudice to the 1st respondent; striking out would cause delay, increased costs and prejudice, and the court declined to exercise that discretion on a preliminary objection.

p. 4

Legal principles established

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  • A preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained or judicial discretion exercised
  • A mere procedural irregularity that causes no prejudice, such as failure to file a written authority to plead, does not warrant striking out the suit

Court orders

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  1. 1.The notice of preliminary objection dated 6th April 2021 is found unmeritorious and is dismissed
  2. 2.Costs of the preliminary objection awarded to the applicants

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rules 8 and 13
  • Civil Procedure RulesOrder 37 Rule 1 and Rule 8
  • Civil Procedure RulesOrder 24 Rule 7
  • Civil Procedure RulesOrder 38 Rule 8
  • Civil Procedure RulesOrder 17 Rule 2 [now Order 18 rule 2]
  • Registered Land Actnull
  • Land Registration Actnull

Cases cited (10)

  • Giella versus Cassman Brown and Company Limited
    (1973) E.A 358
  • Hazekia Kipkorir Martin & 10 Others versus Philip Kipkoech Tenai & 2 Others
    ELC No. 361 of 2015
  • Peeraji General Trading & Contracting Company Limited & Another versus Mumias Sugar Company Limited
    HCCC No. 192 of 2015
  • Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another
    [2014] eKLR
  • Avenue Car Hire & Another vs. Slipha Wanjiru Muthegu
    Civil Appeal No. 302 of 1997
  • Muchami Mugeni vs. Elizabeth Wanjugu Mungara & Another
    Civil Appeal No. 141 of 1998
  • Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd
    (1969) EA 696
  • Quick Enterprises Ltd Vs Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
  • Avtar Singh Bhamra & Another Vs Oriental Commercial Bank
    Kisumu HCCC No.53 of 2004
  • Oraro Vs Mbaja
    (2005) 1 KLR 141
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the originating summons; ruling on a preliminary objection under the Civil Procedure Rules

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, "Joseph Muindi Mutua & 5 others v Boniface M Muunda & another [2022] KEELC 1608 (KLR)", Case Analysis (2022). ELC Originating Summons (Makueni) – notice of preliminary objection dated 6th April 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1608/eng@2022-02-08

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