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ELCDismissedNot stated in the judgment· [2022] KEELC 2727 (KLR)

Gitau v Trustees Caritas Mariana Holy Family Childrens Thika & another (Environment & Land Case 43 of 2017) [2022] KEELC 2727 (KLR)

Environment and Land Court
23 June 2022
JKJ G Kemei
1,031 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed defendants' attempt to kill a land suit, confirming preliminary objections cannot rely on disputed facts.

What this practically means

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Executive summary

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The 1st and 2nd defendants raised a preliminary objection on 16/3/2022 on three grounds: that the suit stood dismissed by operation of orders issued on 23/2/2022 (which directed the plaintiff to fix the suit for hearing within 14 days in default of which it would stand dismissed), that the plaintiff's pending application contained no prayer to stay or lift those orders, and that the plaintiff had no right of audience for failing to pay the defendants' advocates' costs. The plaintiff opposed, contending that a preliminary objection must be a pure point of law, that counsel was unaware of the orders, and that the application to amend filed on 4/3/2022 was itself within the 14-day window, making it premature to fix a hearing date. Counsel Dr Kenyariri argued for the defendants and Mr Mungai for the plaintiff, the objection being argued online on 17/3/2022. The court framed two issues: whether the objection was a pure point of law, and whether it was merited. Applying Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696, the court held that determining whether the plaintiff fixed the suit for hearing required ascertainment of facts, so the objection was not a pure point of law. The court further found the suit was in existence when the amendment application was filed on 4/3/2022. The preliminary objection was dismissed with no orders as to costs. Delivered at Thika on 23 June 2022 by J G Kemei, Judge, via Microsoft Teams.

Key legal issues

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01

Whether the preliminary objection was a pure point of law

Holding

It was not, because determining it required ascertainment of facts on the record

Reasoning

Applying the Mukisa Biscuit test, a preliminary objection must be a point of law pleaded or arising by clear implication from the pleadings, on the assumption that all facts pleaded by the other side are correct. Whether the plaintiff had fixed the suit for hearing within 14 days of the orders of 23/2/2022 required an examination of facts on the record, disqualifying the objection.

p. 2
02

Whether the suit stood dismissed for failure to fix it for hearing within 14 days

Holding

The suit was still in existence; the plaintiff filed an application to amend within the 14 days and it was premature to fix the matter for hearing pending that application

Reasoning

Although the plaintiff did not fix the matter for hearing within the 14 days as directed, the application under certificate of urgency filed on 4/3/2022 seeking leave to amend the plaint was within that window, so the suit existed when it was filed. Fixing a hearing date would have been premature pending the amendment application.

p. 3

Legal principles established

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  • A preliminary objection must consist of a pure point of law arising from the pleadings, either expressly or by clear implication; it cannot be raised where facts must be ascertained or judicial discretion exercised

Court orders

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  1. 1.The preliminary objection is dismissed
  2. 2.No orders as to costs

Authorities

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Cases cited (1)

  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    [1969] EA 696
Jurisdiction invoked
Original civil suit jurisdiction of the Environment and Land Court (provision not expressly cited 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, "Gitau v Trustees Caritas Mariana Holy Family Childrens Thika & another (Environment & Land Case 43 of 2017) [2022] KEELC 2727 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2727/eng@2022-06-23

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