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ELCDismissedPetition No. 8 of 2021· [2022] KEELC 4840 (KLR)

Boni/Sanye Community Based Organisation & 2 others v National Land Commission & 11 others

Environment and Land Court of Kenya
21 September 2022
1,199 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (MAO Odeny, J) determines a Notice of Preliminary Objection dated May 28, 2021 raised by the 12th respondent, Abdi Rehman, in a petition by the Boni/Sanye Community Based Organisation, Hussein Abdalla and Arafa Lacho & 600 others against the National Land Commission, the Chief Land Registrar, the National Police Service, the Attorney General and eight other respondents. The objection had three grounds: that the petitioners disclose no joint facts or common identifiable property; that they have not identified any particular property whose Article 40 rights were violated and were burdening the court to identify their land for them; and that the pleadings disguise a purely civil dispute as a constitutional petition. The 12th respondent, the only party to file submissions, relied on Ledidi Ole Tauta and Anarita Karimi Njeru to argue that the suit land (allegedly Magogoni Village land) was unidentified, making any orders impractical to enforce. The court applied the classic Mukisa Biscuit definition of a preliminary objection as a pure point of law, reinforced by the Supreme Court in Aviation & Allied Workers Union and IEBC v Cheperenger. It held that identification of the suit land is a factual matter for the full trial, not a preliminary stage, and that courts should sparingly strike out suits. The preliminary objection was dismissed on September 21, 2022, with no costs order recorded. The petition now proceeds to full hearing.

Key legal issues

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01

Whether the preliminary objection was a pure point of law

Holding

It was not; it required ascertainment of facts such as identification of the suit land, which is for full trial

Reasoning

Applying Mukisa Biscuit and Aviation & Allied Workers Union, the court held that a preliminary objection must be a pure question of law with no contest as to facts. Here, whether the petitioners own identifiable property and what the suit land is are factual questions to be determined at the hearing, so the objection was improperly raised.

02

Whether courts should strike out suits on preliminary objection

Holding

Courts should do so sparingly, only where the case is absolutely unsustainable or hopeless

Reasoning

The court invoked the Supreme Court's guidance in IEBC v Cheperenger that a preliminary objection is a shield, not a sword, and should not be used to win a case otherwise destined for resolution on the merits. The petition was not shown to be hopeless, so the objection failed.

p. 4

Legal principles established

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  • A preliminary objection consists of a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained
  • Identification of the suit land is a matter for the full trial, not a preliminary stage
  • Courts should sparingly strike out cases and lock parties out of the seat of justice

Court orders

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  1. 1.The preliminary objection by the 12th respondent is dismissed
Jurisdiction invoked
Articles 1, 2, 3, 10, 23, 40, 60, 67 and 258 of the Constitution of Kenya

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, "Boni/Sanye Community Based Organisation & 2 others v National Land Commission & 11 others", Case Analysis (2022). Petition No. 8 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4840/eng@2022-09-21

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