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ELCDismissedEnvironment & Land Case E021 of 2021· [2022] KEELC 14806 (KLR)

Mucheke & another v Mucheke & another

Environment and Land Court
16 November 2022
CYCK Yano
1,756 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 dismissed a bid to throw out a land suit, confirming preliminary objections cannot rely on disputed facts.

What this practically means

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Executive summary

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This ruling by CK Yano, J of the Environment and Land Court at Meru determined a preliminary objection dated July 22, 2022 raised by the 1st respondent against the applicants' originating summons dated August 26, 2021. The 1st respondent argued that the court lacked jurisdiction because the applicants were, in substance, seeking determination of the succession of the estate of Festus Mucheke Ngaruni and revocation of a grant allegedly issued in 1977, matters he said belonged to the probate court; he also contended the suit was a non-starter and an abuse of process. The applicants countered that no grant or succession proceedings had been produced, and that their claims - revocation and cancellation of titles allegedly procured without letters of administration - fell squarely within section 13(2) of the Environment and Land Court Act and Article 162(2)(b) of the Constitution. The 2nd respondent supported the applicants. Applying the Mukisa Biscuits principles, the court held that a preliminary objection must be a pure point of law argued on the assumption that all pleaded facts are correct, and cannot be raised where facts must be ascertained. Since the 1st respondent's assertions about the existence of a grant and succession proceedings raised factual disputes requiring evidence, raising them through submissions amounted to giving evidence from the bar. The preliminary objection was dismissed with costs to the applicants and the 2nd respondent; the suit remains for 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 raised factual issues requiring ascertainment, so it could not stand as a preliminary objection

Reasoning

The court applied the Mukisa Biscuits test. The 1st respondent asserted through submissions that there was a 1977 grant and succession proceedings, while the applicants denied any such proceedings existed. Since these competing factual assertions had to be ascertained, the objection failed the requirement that a preliminary objection be a pure point of law argued on assumed facts.

p. 3
02

Whether the ELC has jurisdiction over the applicants' claims

Holding

Not determined; the jurisdictional question was left for the full hearing since it could not be resolved on a preliminary objection

Reasoning

The 1st respondent argued the suit was really a succession dispute outside ELC jurisdiction, while the applicants and 2nd respondent contended the claims concerned cancellation and revocation of titles under section 13(2) of the ELC Act. Because the objection depended on unresolved facts, the court declined to rule on jurisdiction at the preliminary stage.

p. 3

Legal principles established

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  • A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained
  • Raising issues of fact through submissions amounts to giving evidence from the bar, which is improper

Court orders

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  1. 1.The preliminary objection dated July 22, 2022 is dismissed
  2. 2.Costs of the preliminary objection to the applicants and the 2nd respondent

Authorities

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Legislation

  • Environment and Land Court Actsection 13(2)
  • Environment and Land Court Actsection 13(2)(d) and 13(7)
  • Constitution of KenyaArticle 162(2)(b)
  • Land Actsection 150
  • Land Registration Actsections 80(1) and 101
  • Probate and Administration Rulesrule 41(3)

Cases cited (9)

  • Isaac Kinyua & 3 others v Hellen Kaigongi
    [2018] eKLR

    Succession matters do not fall within ELC jurisdiction

  • Priscilla Ndubi and Zipporah Mutiga v Gerishon Gatobu
    Meru Succession Cause No 720 of 2013

    Primary duty of probate court to distribute estate; ownership issues resolved before confirmation

  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & others
    [2012] eKLR

    Jurisdiction of courts

  • Joseph Kiprotich Bor v Tabutany Chepkoech Chebusit
    ELC Appeal No E001 of 2020 (Kericho)
  • Munya Maina v Hiram Gathiha Maina
    [2013] eKLR
  • Alice Chemutai Too v Nickson Kipkurui Korir & 2 others
    [2015] eKLR, ELC 51 of 2014 (O.S)

    ELC jurisdiction over title revocation claims

  • Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989]

    Jurisdiction must be derived from statute or Constitution

  • Satya Bhama Gandhi v Director of Public Prosecutions & 3 others
    [2018] eKLR

    Abuse of court process / preliminary objection principles

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

    Definition and principles of preliminary objections

Jurisdiction invoked
Article 162(2)(b) of the Constitution and section 13(2) of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mucheke & another v Mucheke & another", Case Analysis (2022). Environment & Land Case E021 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14806/eng@2022-11-16

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