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ELCPartially AllowedCivil Suit 130 of 2020· [2022] KEELC 15160 (KLR)

Nyamobite Farmers Co-operative Society v Chief Land Registrar & 5 others

Environment and Land Court
24 November 2022
3,980 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan land court kept the co-operative's lawsuit alive but threw out its injunction application because its affidavit exhibits were never properly sealed and stamped.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (OA Angote, J) determined two preliminary objections against the plaintiff's application of July 13, 2020 seeking an interlocutory prohibitory injunction restraining the 1st, 3rd and 6th defendants from interfering with land title IR 5074/1. The 3rd defendant objected on grounds of res judicata (citing a consent order in ELC Misc E050 of 2020), lack of locus standi of the deponent, and abuse of process; the 4th-6th defendants objected on lack of authority under Order 4 Rule 1(4) and section 28(3) of the Co-operative Societies Act, failure to seal exhibits under the Oaths and Statutory Declarations Rules, and failure to serve ex-parte orders within three days. The court applied the Mukisa Biscuits threshold, holding that res judicata required factual interrogation of pleadings and could not be determined preliminarily, and that failure to file authority was a curable defect following Spire Bank Ltd. However, the exhibits to the supporting affidavit were not sealed or serialised as required; relying on Kombo v Wetangula and Omache, and Salat v IEBC on the limits of Article 159, the court expunged them, leaving the affidavit without probative value and the application without foundation. The February 9, 2021 objection was dismissed in its entirety; the March 1, 2021 objection partly succeeded, and the application of July 13, 2020 was struck out with costs. The suit itself was not struck out and remains pending.

Key legal issues

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01

Whether the deponent's lack of filed authority invalidates the suit and application

Holding

No - the defect is curable and does not invalidate the suit

Reasoning

Section 28 of the Co-operative Societies Act vests authority to institute suits in the committee. Order 4 Rule 1(4) requires a verifying affidavit sworn by an authorized officer. Following Spire Bank Ltd, the provision was not meant to be used as a technicality to strike out suits where no evidence shows the officer was unauthorized, and the defect can be rectified before trial.

p. 6
02

Whether the application is res judicata ELC Misc E050 of 2020

Holding

The objection is incompetent; res judicata requires factual interrogation of pleadings and cannot be determined on a preliminary objection

Reasoning

The court must consider the relevant pleadings, which cannot be adduced by way of preliminary objection. The consent in ELC E050 of 2020 attached to a replying affidavit was insufficient to determine the nature of that case, so the issue falls outside a pure point of law.

p. 6
03

Legal effect of exhibits not sealed and serialised under Rules 9 and 10 of the Oaths and Statutory Declarations Rules

Holding

The exhibits are inadmissible and are expunged; the supporting affidavit loses probative value and the application has no foundation

Reasoning

Relying on Kombo v Wetangula and Omache, sealing and marking exhibits is a substantive requirement, not a technicality curable by Article 159. The annexures were merely marked but not attested, signed or sealed by the Commissioner of Oaths, so they are expunged, rendering the affidavit unsupported and the application foundationless.

04

Whether failure to serve ex-parte orders within 3 days under Order 40 Rule 4(3) warranted striking out

Holding

Not separately determined; the application was struck out on the exhibits defect

Reasoning

The 4th-6th defendants argued the orders of January 28, 2021 were served on February 16, 2021, beyond the 3 days required by Order 40 Rule 4(3). The court did not make a distinct finding on this ground, disposing of the application instead on the expunged exhibits.

p. 3

Legal principles established

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  • A preliminary objection must be a pure point of law, not requiring ascertainment of facts or exercise of judicial discretion
  • Failure to file authority under Order 4 Rule 1(4) is not a procedural technicality to strike out suits absent evidence the officer was unauthorized
  • Exhibits not sealed and marked with serial letters of identification under the Oaths and Statutory Declarations Rules are inadmissible and may be expunged

Court orders

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  1. 1.The preliminary objection dated February 9, 2021 fails and is dismissed in its entirety
  2. 2.The preliminary objection dated March 1, 2021 partly succeeds to the extent that the application dated July 13, 2020 is struck out with costs

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • Civil Procedure RulesOrder 4 rule 1(4), Order 4 rule 1(6), Order 1 rule 13, Order 2 rule 15(1)(d), Order 40 rule 4(3)
  • Co-operative Societies Act, Cap 490sections 12, 27(1), 28(1), 28(3)
  • Oaths and Statutory Declarations Actsections 9 and 10 (Rules 9 and 10 of the Oaths and Statutory Declarations Rules)
  • Constitution of KenyaArticle 159

Cases cited (14)

  • Mukisa Biscuit Manufactering Co Ltd v West End Distributors Ltd (1969) EA 696
    (1969) EA 696

    Threshold of a preliminary objection - a pure point of law

  • David Karobia Kiiru v Charles Nderitu Gitio & another [2018] eKLR
    [2018] eKLR

    A preliminary objection must be on a pure point of law

  • Diocese of Eldoret Trustees (Registered) v Attorney General (On Behalf of the Principal Secretary Treasury) & another [2020] eKLR
    [2020] eKLR

    Illustration of res judicata under section 7 of the Civil Procedure Act

  • George Omondi v National Bank of Kenya Limited & others [2001] eKLR
    [2001] eKLR

    Res judicata

  • Mumo Matemu v Trusted Society of Human Rights Alliances & 5 others [2014] eKLR
    [2014] eKLR

    Locus standi is a point of law touching jurisdiction to be determined at the earliest opportunity

  • Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others, Petition No 10 of 2013 [2014] eKLR
    [2014] eKLR

    Re-affirming the Mukisa Biscuits test on preliminary objections

  • Priscilla Jesang Koech v Rebecca Koech & 3 others [2018] eKLR
    [2018] eKLR

    Locus standi goes to the root of a suit and is a point of law capable of disposing of a matter preliminarily

  • Law Society of Kenya v Commissioner of Lands & Others, Nakuru High Court Civil Case No 464 of 2000
    null

    A party without locus standi cannot bring a suit

  • Sisilia Nyakoe & another v Attorney General & 4 others [2021] eKLR
    [2021] eKLR

    Definition of locus standi as the right to appear and be heard

  • Alfred Njau & others v City Council of Nairobi (1982) KAR 229
    (1982) KAR 229

    Locus standi means a right to appear in court

  • Spire Bank Limited vs Land Registrar & 2 others [2019] eKLR
    [2019] eKLR

    Order 4 Rule 1(4) not intended as a technicality to strike out suits

  • Musikari Nazi Kombo v Moses Masika Wetangula and 2 others [2013] eKLR
    [2013] eKLR

    Sealing and marking exhibits is a substantive requirement; unsealed documents inadmissible

  • Solomon Omwega Omache & another v Zachary O Ayieko & 2 others [2016] eKLR
    [2016] eKLR

    Unsealed annextures expunged; affidavit without annextures rejected

  • Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others [2013] eKLR
    [2013] eKLR

    Article 159 does not aid overthrow of rules of procedure

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land title IR 5074/1

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, "Nyamobite Farmers Co-operative Society v Chief Land Registrar & 5 others", Case Analysis (2022). Civil Suit 130 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15160/eng@2022-11-24

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