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ELCDismissedNot stated in the judgment as provided· [2023] KEELC 676 (KLR)

Ligawa & another v Ochola (Sued as the Administrator of the Estate of Omoka Owino - Deceased) (Environment & Land Case 102 of 2017) [2023] KEELC 676 (KLR)

Environment and Land Court
7 February 2023
MKMohammed N. Kullow
1,351 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a defendant's attempt to kill a land suit early, because the issues needed facts and evidence, not just legal argument.

What this practically means

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Executive summary

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The defendant filed a notice of preliminary objection against the plaintiffs' amended originating summons, arguing that the plaintiffs cannot claim both purchaser's interest and adverse possession at the same time, that the suit is barred by section 7 of the Limitation of Actions Act after over twelve years of the defendant's occupation, that it offends sections 21 and 22 of the Land Control Act, and that it is an abuse of process, misconceived and discloses no reasonable cause of action. The objection was canvassed by written submissions. The defendant relied on Gulam Miriam Noordin v Julius Charo Karisa and Richard Wefwafwa Songoi v Ben Munyifwa Songoi; the plaintiffs countered that the objection was not founded on pure points of law, relying on Henry Wanyama Khaemba v Standard Chartered Bank, Mukhisa Biscuits v West End Distributors and United Insurance Co Ltd v Scholastica A. Odera. Framing the sole issue as whether the objection was merited, Kullow J applied the Mukhisa Biscuits definition and the Supreme Court's decision in Aviation & Allied Workers Union Kenya v Kenya Airways Ltd, holding that a preliminary objection must be a pure point of law and cannot be raised where facts must be ascertained or discretion exercised. The issues raised - dual claims of purchaser's interest and adverse possession, possession of the suit land, and when the twelve-year period began to run - were all factual and required evidence and analysis of exhibits at a full hearing. The preliminary objection was dismissed with each party bearing their own costs, delivered virtually at Migori on February 7, 2023.

Key legal issues

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01

Whether claims of purchaser's interest, adverse possession, limitation under section 7 of the Limitation of Actions Act and the Land Control Act objections can be determined on a preliminary objection

Holding

No - these are factual issues determinable only at a full hearing

Reasoning

The court applied the Mukhisa Biscuits test and the Aviation & Allied Workers Union formulation. Determining whether the plaintiffs claimed both purchaser's interest and adverse possession, who is in possession, and when the 12-year limitation period began to run all require production and analysis of evidence and exercise of the court's discretion. Since facts must be ascertained, the objection is not a pure point of law and cannot succeed at the interlocutory stage.

p. 3

Legal principles established

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  • A preliminary objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion
  • A preliminary objection may only be raised on a pure question of law where there is no proper contest as to the facts

Court orders

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  1. 1.The defendant's notice of preliminary objection dated June 19, 2019 is not merited and is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)Section 7
  • Land Control ActSections 21 and 22

Cases cited (6)

  • Gulam Miriam Noordin vs Julius Charo Karisa
    [2015] eKLR
  • Richard Wefwafwa Songoi vs Ben Munyifwa Songoi
    [2020] eKLR
  • Henry Wanyama Khaemba vs Standard Chartered Bank Ltd & Anor
    [2014] eKLR
  • Mukhisa Biscuits vs West End Distributors Ltd
    [1969] EA 696
  • United Insurance Co Ltd vs Scholastica A. Odera
    Kisumu HCCA No 6 of 2005
  • Aviation & Allied Workers Union Kenya vs Kenya Airways Ltd & 3 Others
    [2015] eKLR
Jurisdiction invoked
First-instance jurisdiction of the Environment and Land Court over the originating summons and the preliminary objection filed therein

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, "Ligawa & another v Ochola (Sued as the Administrator of the Estate of Omoka Owino - Deceased) (Environment & Land Case 102 of 2017) [2023] KEELC 676 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/676/eng@2023-02-07

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