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ELCDismissedNot stated in the excerpt· [2022] KEELC 2989 (KLR)

Kasura (Suing as the Son, Next of Kin and Legal Representative of The Late Solomon Leperes Kasura) v Kioko (alias Magdalene Mwikali Kasura) & 2 others (Environment & Land Case E014 of 2021) [2022] KEELC 2989 (KLR)

Environment and Land Court
23 June 2022
CMC. G. Mbogo
2,480 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Narok court threw out an attempt to strike off a land case, ruling that disputed facts must be tested at a full hearing, not through preliminary objections.

What this practically means

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Executive summary

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The 1st defendant filed a notice of preliminary objection dated 28th September 2021 seeking to strike out the plaintiff's notice of motion dated 5th July 2021 and the entire suit, on seven grounds: want of locus standi (an administrator, Jonah Tobiko Kasura, having been appointed in Narok Succession Cause No. 12 of 2007), breach of section 71(2)(a) of the Law of Succession Act, res judicata by reason of Nairobi High Court Civil Case No. 3738 of 1994, estoppel based on title registered in the 1st defendant's name during the deceased's lifetime, abuse of court process, and failure to disclose a cause of action. The plaintiff opposed, first contending the objection was filed by a firm (Ombati DB & Company) improperly on record, and second that the grounds raised factual disputes unsuitable for a preliminary objection, relying on Mukisa Biscuits and Nitin Properties. The court framed two issues: whether Ombati DB & Company was properly on record, and whether the objection was merited. On the first issue, the court held that joint representation is permissible, consent under Rule 6(1) of the Advocates (Practice) Rules may be express or implied and need not be filed, neither advocate objected, and the plaintiff suffered no prejudice. On the second issue, applying Mukisa Biscuits and Lemitei Ole Koros, the court held the objection required contested facts and evidence to be resolved and therefore fell outside a preliminary objection. The objection was dismissed with no orders as to costs.

Key legal issues

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01

Whether Ombati DB & Company Advocates, on record for the 2nd defendant, could properly file a preliminary objection on behalf of the 1st defendant without a filed notice of change or consent

Holding

The court held the firm was properly on record; dual or joint representation is permissible and consent under Rule 6(1) of the Advocates (Practice) Rules may be implied, and the plaintiff suffered no prejudice

Reasoning

Rule 6(1) of the Advocates (Practice) Rules 1996 requires consent of the advocate already on record before another advocate acts for the same client, but prescribes no form. The advocate-client relationship is contractual, so consent may be express or implied. Neither advocate objected, both confirmed in open court that they acted alongside each other, and the adverse plaintiff had no standing to micromanage opposing counsel's representation.

p. 4
02

Whether the preliminary objection was a proper preliminary objection raising pure points of law

Holding

The objection failed because determination of locus standi, res judicata, estoppel and abuse of process required examination of disputed facts and evidence outside the pleadings

Reasoning

Applying Mukisa Biscuits and subsequent authority, a preliminary objection must rest on undisputed facts and a pure point of law. The 1st defendant's grounds required scrutiny of succession proceedings, the 1994 High Court proceedings, land adjudication records and title documentation. Where facts are contested, the matter falls outside the ambit of a preliminary objection and must be determined at a full hearing.

p. 5

Legal principles established

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  • A preliminary objection must raise a pure point of law on undisputed facts; where facts are contested, the matter must proceed to full hearing
  • A subsequent advocate may come on record alongside the advocate already on record; consent may be express or implied and need not be in writing or filed

Court orders

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  1. 1.The notice of preliminary objection dated 28th September, 2021 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Law of Succession ActSection 71(2)(a)
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 9 Rule 5
  • Advocates (Practice) RulesRule 6(1)
  • Constitution of KenyaArticles 48, 50(1), 159(2)(a)

Cases cited (6)

  • Independent Electoral & Boundaries Commission versus Maina Kiai & 5 Others
  • Nitin Properties Limited versus Singh Kalsi & Another
    [1995] eKLR
  • Mukisa Biscuits Manufacturing Co. Limited versus West End Distributors Ltd
    (1969) EA 696
  • Tom Kusienya & Others v Kenya Railways Corporation & others
    [2013] eKLR
  • Delphis Bank Limited vs Channan Singh Chatthe and 6 Others
    (2005) eKLR
  • Lemitei Ole Koros & another v Attorney General & 3 others
    (2016) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit property dispute

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, "Kasura (Suing as the Son, Next of Kin and Legal Representative of The Late Solomon Leperes Kasura) v Kioko (alias Magdalene Mwikali Kasura) & 2 others (Environment & Land Case E014 of 2021) [2022] KEELC 2989 (KLR)", Case Analysis (2022). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2989/eng@2022-06-23

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