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ELCDismissed· [2022] KEELC 2208 (KLR)

Mwangangi v Mutua & another (Environment & Land Case E005 of 2021) [2022] KEELC 2208 (KLR)

Environment and Land Court
30 June 2022
2,267 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 dismissed a bid to strike out a trespass suit, ruling that disputed facts cannot be decided through a preliminary objection.

What this practically means

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Executive summary

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The Defendants filed an Amended Notice of Preliminary Objection dated 24th January 2022 contending that the Plaintiff's trespass suit over LR Mwingi/Mbondoni/2206 had abated because summons to enter appearance were never prepared, signed, collected and served in accordance with Order 5 Rules 1(2), (3), (5) and (6) of the Civil Procedure Rules, 2010, and seeking that the plaint and the pending injunction application be struck out with costs. The Plaintiff, in an affidavit sworn on 31st January 2022, denied the allegations, explaining that although the documents including summons were filed on 6th December 2021, the summons had not been signed by the registry, and were only confirmed as signed and ready for collection on 28th January 2022. The court, applying Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd and Oraro v Mbaja, held that the objection raised disputed and unascertained issues of fact and therefore was not a pure point of law capable of determination as a preliminary objection. The court found the summons were signed and stamped on 25th January 2022, were still in the court file and valid, so the abatement provision in Order 5 Rule 6 had not yet been triggered when the objection was filed. The authorities of Grace Wairimu Mungai and Martin Luther King Andati relied on by the Defendants were distinguished. The preliminary objection was dismissed with no order as to costs, and the suit and injunction application remain for determination.

Key legal issues

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01

Whether the Defendants' preliminary objection on abatement of suit for failure to prepare, sign, collect and serve summons to enter appearance is a proper preliminary objection on a pure point of law

Holding

No - it raises issues of fact and law that remain in dispute and unascertained and cannot be determined by way of preliminary objection

Reasoning

Applying Mukisa Biscuits and Oraro v Mbaja, the court held that a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct. Here the Plaintiff denied the factual allegations regarding filing and collection of the summons, and an examination of the court file showed signed and stamped summons still valid, leaving disputed facts requiring evidence. Service of summons after filing of the objection would also require adducing further evidence and is not a pure point of law.

p. 5
02

Whether the suit had abated under Order 5 Rule 6 of the Civil Procedure Rules, 2010

Holding

No - the summons had not yet been issued when the objection was filed, so the thirty-day period for collection for service had not begun to run

Reasoning

Order 5 Rule 6 requires summons to be collected for service within thirty days of issue or notification, failing which the suit abates. The court found that at the time of filing the preliminary objection on 24th January 2022 the summons had not been issued; they were issued on 25th January 2022 and remain valid. The rule therefore had not kicked in, and the authorities relied on by the Defendants were distinguishable on their facts.

p. 4
03

Whether the authorities relied on by the Defendants (Grace Wairimu Mungai and Martin Luther King Andati) mandated striking out

Holding

Distinguished - Grace Wairimu concerned summons present but unserved and abated, and Andati concerned an application to strike out, not a preliminary objection

Reasoning

In Grace Wairimu Mungai the summons were present in the court file but had not been served and had abated, unlike the present case where the summons were still valid and the objection preceded their issue. In Martin Luther King Andati the court dealt with an application to strike out, whereas this court was dealing with a notice of preliminary objection. The authorities therefore did not compel striking out.

p. 5

Legal principles established

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  • A preliminary objection must be a pure point of law; where facts are in dispute or must be ascertained or proved through evidence, the matter cannot be determined by way of preliminary objection
  • The thirty-day collection period for summons under Order 5 Rule 6 runs from the date of issue or notification, so a suit cannot be said to have abated before the summons have been issued

Court orders

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  1. 1.The Defendants' Preliminary Objection dated 24th January 2022 is dismissed with no order as to costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 5 Rule 1(1), (2), (3), (4), (5) and (6)
  • Civil Procedure Rules, 2010Order 7 Rule 1
  • Constitution of Kenya, 2010Article 159

Cases cited (6)

  • Mukisa Biscuits Manufacturing Co. Ltd –vs– West End Distributors Ltd.
    [1969] E.A. 696
  • Oraro v Mbaja
    [2005] eKLR
  • Attorney General & another v Andrew Maina Githinji & another
    [2016] eKLR
  • Grace Wairimu Mungai v Catherine Njambi Muya
    [2014] eKLR
  • Martin Luther King Andati v Bank of Africa Kenya Ltd & 3 others
    [2018] eKLR
  • John Ongeri Mariaria & 2 others vs Paul Matundura
    2 EA 163
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property; not expressly stated in the ruling

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, "Mwangangi v Mutua & another (Environment & Land Case E005 of 2021) [2022] KEELC 2208 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2208/eng@2022-06-30

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