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ELCDismissedNot stated in the extract· [2022] KEELC 2137 (KLR)

Paul Masila Kimeu (Suing as Administrator of and on Behalf of Syokimau Farm Limited) v Sumra Construction Co. Limited & 2 others [2022] KEELC 2137 (KLR)

Environment and Land Court
18 January 2022
1,277 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to strike out a lawsuit filed by a company administrator, ruling the challenge was premature and needed evidence, not a legal shortcut.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Machakos determined the 2nd Defendant's Notice of Preliminary Objection dated 21st April 2021, which sought to strike out the Plaintiff's suit with costs on the ground that Paul Masila Kimeu, suing as administrator of Syokimau Farm Limited (in members' voluntary winding up since 2013 under the repealed Companies Act Cap 486), was not a licensed Insolvency Practitioner under the Insolvency Act No. 18 of 2015 and the Insolvency Regulations 2016, and thus lacked capacity to institute and maintain the suit concerning Land Reference Number 12715/307. The 1st Defendant had also filed a preliminary objection asserting res judicata. The Plaintiff maintained he was validly appointed administrator by the company's members, that the company ceased to exist upon his appointment, and that past members could only sue through him; he also argued that the 2nd Defendant's claim of beneficial interest required evidentiary ascertainment. Relying on the Mukhisa Biscuit doctrine as reaffirmed by the Supreme Court in IEBC v Cheperenger and Avtar Singh Bhamra, the court held that the objection required ascertainment of facts, lacked anchoring pleadings since the Defendant had filed no Defence, and was premature. The court further held that section 13 of the Environment and Land Court Act divested it of jurisdiction to decide whether the Plaintiff qualified as an Insolvency Practitioner. The preliminary objection was found unmerited and disallowed, with costs in the cause. The suit was directed to proceed to hearing on its merits.

Key legal issues

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01

Whether the 2nd Defendant's preliminary objection (that the Plaintiff lacks capacity as a non-licensed Insolvency Practitioner) could be determined as a pure point of law

Holding

The objection was premature and unmerited as it required ascertainment of facts and had no pleadings anchoring it

Reasoning

The court invoked the Mukhisa Biscuit doctrine that a preliminary objection must be a pure point of law argued on assumed pleaded facts. The 2nd Defendant's challenge to the Plaintiff's capacity and qualifications required evidentiary proof. Further, the Defendant had filed no Defence to provide a basis for the objection, and the court lacked jurisdiction under section 13 of the ELC Act to determine whether the Plaintiff qualified as an Insolvency Practitioner.

p. 2
02

Whether the Environment and Land Court could determine whether the Plaintiff is a qualified Insolvency Practitioner

Holding

The court is devoid of jurisdiction on that issue

Reasoning

By dint of section 13 of the Environment and Land Court Act conferring jurisdiction on the court, the judge held that the question of whether the Plaintiff is qualified to be an Insolvency Practitioner falls outside the court's mandate, and thus that limb of the objection could not be entertained.

p. 2

Legal principles established

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  • A preliminary objection must be a pure point of law, incapable of being raised where facts have to be ascertained or where judicial discretion is sought
  • A party raising a preliminary objection attacking a plaintiff's capacity should first file a Defence and anchor the objection on pleadings

Court orders

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  1. 1.The 2nd Defendant's Notice of Preliminary Objection dated 21st April, 2021 is disallowed as unmerited
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Insolvency ActNo. 18 of 2015
  • Insolvency Regulations2016
  • Companies Act (repealed)Cap 486
  • Environment and Land Court Actsection 13

Cases cited (9)

  • Mukhisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Company Limited
    (1969) EA 696
  • Daykio Plantations Limited V National Bank of Kenya Limited & 2 Others
    (2019) eKLR
  • Kenya Plantation & Agricultural Workers Union V Unilever Tea (K) Ltd
    (2012) eKLR
  • Patrick Kiseki Mutisya (Suing as the Personal Representatives of the estate of Nzomo Mutisya (Deceased) Vs K. B Shangani & Sons Limited & Others
    (2012) eKLR
  • KSC International Limited (Under Receivership) & 5 Others V Bank of Africa (K) Limited & 6 others
    (2018) eKLR
  • Suraya Holdings Limited & 4 Others Vs ICICI Bank & Another
    (2018) eKLR
  • Matter of the Winding Up of Blue Bird Aviation Limited
    W. C No. 7 of 2016
  • Independent Electoral and Boundaries Commission V Jane Cheperenger & 2 Others
    Civil Application No. 36 of 2014
  • Avtar Singh Bhamra & Another Vs Oriental Commercial Bank
    Kisumu HCCC No. 53 of 2004
Jurisdiction invoked
Section 13 of the Environment and Land Court 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, "Paul Masila Kimeu (Suing as Administrator of and on Behalf of Syokimau Farm Limited) v Sumra Construction Co. Limited & 2 others [2022] KEELC 2137 (KLR)", Case Analysis (2022). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2137/eng@2022-01-18

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