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ELCAllowedEnvironment and Land Appeal 7 of 2022· [2022] KEELC 14500 (KLR)

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)

Environment and Land Court
2 November 2022
2,400 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The appellants sued in the magistrates' court (Iten SPMCC ELC Case No 25 of 2020) seeking to compel the Land Registrar Elgeyo Marakwet County to issue title deeds for eight parcels and to restrain the County Land Adjudication Officer from any further adjudication over them. The respondents raised a preliminary objection that the court lacked jurisdiction because the parcels fell within an ongoing adjudication section, no consent of the Land Adjudication Officer had been obtained under Section 30 of the Land Adjudication Act, the suit was time barred, and remedies under the LAA had not been exhausted. The Trial Magistrate upheld the objection and dismissed the suit with costs, holding the parcels 'appear' to fall within an ongoing adjudication and that the cause of action accrued in 2001, outside the 12-year limitation period. On appeal, Waithaka J held that the objection was improperly upheld: whether the parcels fell within an ongoing adjudication section was a contested factual issue requiring evidence, and 'appearing to fall' within such a section is not a conclusive determination; the time bar could not be decided without evidence of when time accrued; and the exhaustion doctrine did not vitiate a suit seeking to restrain further adjudication over already-adjudicated land. Applying Mukisa Biscuit and Ogoti v Safaricom, the court allowed the appeal as prayed.

Key legal issues

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01

Whether the consent of the Land Adjudication Officer under Section 30 of the Land Adjudication Act was required before instituting the suit

Holding

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.

Reasoning

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.

p. 4
02

Whether the suit was time barred under the Limitation of Actions Act

Holding

The TM was not justified in holding the suit time barred because when time accrued was a factual question requiring evidence.

Reasoning

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.

p. 5
03

Whether the doctrine of exhaustion of remedies under the Land Adjudication Act barred the suit

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The appeal has merit and is allowed as prayed
  2. 2.Orders accordingly

Authorities

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Legislation

  • Land Adjudication ActSection 30
  • Land Adjudication ActSection 5
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 7

Cases cited (3)

  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    [1969] EA 696

    Definition of a preliminary objection - a pure point of law that cannot be raised if facts must be ascertained.

  • Charles Onchari Ogoti v Safaricom Limited & another
    [2020] eKLR

    Emerging jurisprudence that preliminary objections should be invoked only where facts are not in dispute.

  • Independent Electoral & Boundaries Commission vs Jane Cheperenger & 2 others
    [2015] eKLR

    Preliminary objection procedure should be invoked where facts are not in dispute.

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

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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, "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.