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ELCDismissedNot stated in the ruling (relates to Civil Suit No. 169 of 1980)· [2022] KEELC 2929 (KLR)

Abdulrahman & 2 others v Seif & 2 others (Environment & Land Case E062 of 2021) [2022] KEELC 2929 (KLR)

Environment and Land Court
24 June 2022
MOM.A. Odeny
1,951 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court at Malindi confirmed that preliminary objections cannot resolve disputes over competing land titles; such issues must be decided at a full trial.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Malindi on a notice of preliminary objection dated November 11, 2021 by the defendant. The objection sought dismissal of the plaintiff's suit on four grounds: that the suit was time-barred under sections 4(4) and 7 of the Limitation of Actions Act given title allegedly acquired through a vesting order of July 22, 1985 in Civil Suit No. 169 of 1980; that the plaint was defective for not pleading when the cause of action accrued; that the court lacked jurisdiction to enforce, set aside or vary in an appellate manner the orders in Civil Suit No. 169 of 1980 by virtue of section 34 of the Civil Procedure Act; and that the suit was otherwise incompetent and an abuse of process. Counsel filed written submissions. The defendant relied on authorities that a statute-barred claim robs the court of jurisdiction and that suits disclosing no cause of action should be struck out. The plaintiff countered that a preliminary objection must be a pure point of law, that both parties claim registered title and possession of original title deeds, and that fraud is pleaded, raising contested factual issues. Applying the Mukisa Biscuits test and Oraro v Mbaja, the court held the objection raised disputed facts: both parties hold titles to the same parcel, so genuineness must be tested at trial. The vesting order was merely an explanation of how the plaintiff acquired title, and the suit was for trespass, not execution of the 1980 decree. The preliminary objection was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether the limitation objection and no-cause-of-action objection were pure points of law

Holding

No - the issues raised were contested factual matters (competing titles, fraud, when trespass accrued) that require trial

Reasoning

The court found the plaintiff pleaded a cause of action as a bona fide purchaser with title, exhibiting an official search and rates receipts. The defence alleges fraud and claims possession of the original title. Since one parcel cannot have two title deeds, the genuineness of the titles must be determined at trial, not on a preliminary objection, as the issues are contested and require ascertainment of facts.

p. 4
02

Whether the claim is an execution of the 1980 decree barred by section 34 of the Civil Procedure Act

Holding

No - the vesting order was merely an explanation of how the plaintiff acquired title; the claim is for trespass

Reasoning

The court held that the vesting order was already acted upon by registration and issuance of title. The suit is a claim for trespass to land, not implementation of the vesting order or execution of the decree in Civil Suit No. 169 of 1980, so section 34 does not defeat the suit.

p. 4

Legal principles established

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  • A preliminary objection must be a pure point of law; it cannot be raised where any fact has to be ascertained or where disputed facts must be tested by evidence

Court orders

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  1. 1.The preliminary objection dated November 11, 2021 is dismissed with costs to the plaintiff
  2. 2.Order 21(1) of the Civil Procedure Rules waived in delivery of the ruling online pursuant to Public Order No. 2 of 2021

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22, Laws of Kenya)sections 4(4) and 7
  • Civil Procedure Actsection 34
  • Civil Procedure Rules, 2010Order 2 rule 15; Order 21 rule [1]

Cases cited (10)

  • Edward Moonge Lengusuranga v James Lanaiyara & another
    [2019] eKLR
  • Bosire Ongero vs Royal Media Services
    [2015] eKLR
  • Dickson Ngige Ngugi v Consolidated Bank Ltd (Formerly Jimba Credit Corporation Limited & another
    [2020] eKLR
  • Misiko Remy Sirengo (Suing as the Legal Representative of the Estate of Alfred Juma Sirengo (Deceased) v John Kabaa Watene & another
    [2020] eKLR
  • Nandlal Jivraj Shah & 2 others v Kingfisher Agencies
    [2018] eKLR
  • Oraro v Mbaja
    (2005) 1 KLR 141
  • Grace Mwenda Munjuri v Trustees of the Agricultural Society of Kenya
    (2017) eKLR
  • Silvester K Kaitany v Nyayo Tea Zones Development Corporation & another, National Land Commission & Another (Interested Parties)
    (2020) eKLR
  • Wilmot Mwadilo, Edwin Mwakaya, Amos Nyatta & Patrick Mbinga vs Eliud Timothy Mwamunga & Sagalla Ranchers Limited
    (2017) eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd
    (1969) EA 696
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act; 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, "Abdulrahman & 2 others v Seif & 2 others (Environment & Land Case E062 of 2021) [2022] KEELC 2929 (KLR)", Case Analysis (2022). Not stated in the ruling (relates to Civil Suit No. 169 of 1980). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2929/eng@2022-06-24

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