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ELCDismissedFormerly High Court Embu Case No. 114 of 2011; amended Originating Summons dated 5.11.2014, filed 1.12.2014· [2022] KEELC 2575 (KLR)

Ireri v Njagu & 2 others; Nguru (Interested Party) (Environment & Land Case 171 of 2014) [2022] KEELC 2575 (KLR)

Environment and Land Court
30 June 2022
AKA.K. Kaniaru
1,812 words in judgment
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The bottom line

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The Environment and Land Court dismissed an attempt to throw out a long-running Embu land dispute, confirming that vague objections cannot be used as shortcuts to strike out a suit.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Embu (A.K. Kaniaru, J) disposed of a preliminary objection by the defendants against the plaintiff's suit, originally filed by Originating Summons in the High Court at Embu in 2011 and later amended in 2014 to reflect the Embu County Government's custody of the land register. The plaintiff, who claimed continuous occupation of a disputed house since 1996 and alleged trespass and damage by the interested party, sought cancellation and substitution of entries in the land register. The defendants objected that both the original and amended Originating Summons were bad in law, unintelligible, and materially different from the pleading sought to be amended, and sought striking out; they also argued the suit appeared to seek adverse possession orders which were not pleaded. The plaintiff countered that the objection cited no law and urged judgment in his favour with formal proof. The court applied the locus classicus definition of a preliminary objection in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd as restated in Oraro v Mbaja, holding that a preliminary objection must be a pure point of law uncontaminated by contested facts. It found that the assertion that a suit is bad in law, absent identification of the specific law, is not a point of law and requires factual ascertainment and evidence at trial, citing Josephat Njuguna Karugu v Margaret Nduta Ngugi. The court also noted the defendants could not obtain striking out through a preliminary objection without a proper application. The preliminary objection was dismissed for lack of merit; no costs order was made.

Key legal issues

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01

Whether the preliminary objection that the suit is bad in law is a valid preliminary objection

Holding

The court held that the objection was not a true preliminary objection as it did not state the specific law breached and required factual investigation and proof through trial

Reasoning

Applying the Mukisa Biscuit and Oraro v Mbaja criteria, the court found that a preliminary objection must be a pure point of law decided on the assumption that pleaded facts are correct. The ground that a suit is bad in law was imprecise and anchored on facts requiring probing through evidence, so it could not be entertained as a preliminary point and was dismissed.

p. 4
02

Whether the court could strike out the pleadings on the material before it

Holding

The court declined, noting the defendants should have filed a proper striking-out application which was not before it

Reasoning

Although the defendants appeared to seek striking out of the pleadings, they had not approached the court through a proper application. The court could not consider a matter not formally placed before it, and the improper use of a preliminary objection for that purpose was rejected.

p. 4

Legal principles established

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  • A preliminary objection must be a pure point of law pleaded or arising clearly from the pleadings, capable of disposing of the suit without ascertainment of facts
  • An objection that a suit is bad in law is not a true preliminary objection where the specific law is not stated and its determination requires evidence at trial

Court orders

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  1. 1.The preliminary objection dated 25.9.2021 and filed on 7.10.2022 is dismissed for lacking merit

Authorities

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Legislation

  • Civil Procedure ActOrder 8 rules 4 and 5

Cases cited (3)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Oraro vs. Mbaja
    [2005] 1 KLR 141
  • Josephat Njuguna Karugu v Margaret Nduta Ngugi & 2 others
    [2021] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit as filed (transferred from the High Court of Embu, Case No. 114 of 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, "Ireri v Njagu & 2 others; Nguru (Interested Party) (Environment & Land Case 171 of 2014) [2022] KEELC 2575 (KLR)", Case Analysis (2022). Formerly High Court Embu Case No. 114 of 2011; amended Originating Summons dated 5.11.2014, filed 1.12.2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2575/eng@2022-06-30

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