Tuiser & 10 others v Attorney General & 2 others; Chepkoga (Suing on their own behalf and on behalf of the members of the Changach) & another (Interested Parties)
The bottom line
#Kenya's Environment and Land Court ruled that land disputes involving contested facts cannot be thrown out on a preliminary objection without hearing evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent of the Land Adjudication Officer under Section 30 of the Land Adjudication Act was required before instituting the suit
The TM erred: whether the suit lands fall within an ongoing adjudication section was a contested factual issue requiring evidence, so it could not be resolved on a preliminary objection.
The respondents claimed the parcels fell within ongoing adjudication in Emsea-Changach; the appellants denied this, saying the parcels were adjudicated in Lower Sego. The TM only found the parcels 'appear' to fall within an ongoing adjudication section, which is not a conclusive determination. Since facts were contested, evidence was required before concluding that consent of the LAO was a precondition to filing suit.
Whether the suit was time barred under the Limitation of Actions Act
The TM was not justified in holding the suit time barred because when time accrued was a factual question requiring evidence.
While a claim concerning land must ordinarily be brought within 12 years of accrual, the TM fixed accrual at 2001 without any evidence capable of proving that fact. Where evidence is needed to prove when time accrued in favour of the defendants, limitation cannot be determined as a preliminary point unless it is ascertainable from the pleadings.
Whether the doctrine of exhaustion of remedies under the Land Adjudication Act barred the suit
Exhaustion did not vitiate the suit where the appellants seek to restrain further adjudication on the basis that the properties were subject of an earlier completed adjudication.
The court accepted the general duty to exhaust remedies under the LAA but held that in the special circumstances of this case - where the appellants seek to restrain any further adjudication process on grounds that the properties were already adjudicated - the doctrine does not defeat the suit.
Legal principles established
#- A preliminary objection cannot be upheld where the issue requires ascertainment of facts; a point that 'appears' one way is not a conclusive determination.
- A plea of time bar cannot found a preliminary objection unless the accrual of time is ascertainable from the pleadings without evidence.
Court orders
#- 1.The appeal has merit and is allowed as prayed
- 2.Orders accordingly
- On appeal from
- Principal Magistrates' Court at Iten
- Iten SPMCC ELC Case No 25 of 2020
- Jurisdiction invoked
- Appeal from the magistrates' court under the Environment and Land Court Act (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tuiser & 10 others v Attorney General & 2 others; Chepkoga (Suing on their own behalf and on behalf of the members of the Changach) & another (Interested Parties)", Case Analysis (2022). Environment and Land Appeal 7 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14500/eng@2022-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.