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ELCDismissedEnvironment & Land Case E002 of 2022· [2023] KEELC 16482 (KLR)

Guthiga v Guthiga

Environment and Land Court
23 March 2023
JOJ. O. Olola
1,067 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff sued the Defendant seeking declarations that he is the rightful owner of 1.643 Ha out of LR No Iriaini/Kairi/109, that the Defendant is illegally occupying it, an eviction order with police enforcement, and costs. The Defendant denied the Plaintiff's registered proprietorship, asserting in the alternative that the registration, being pursuant to transmission, is subject to active litigation in Nyeri High Court Succession Cause No 841 of 2015, and that her occupation is as a widow and beneficiary based on custom and tradition. She also filed a Notice of Preliminary Objection dated June 16, 2022 contending that the suit is sub judice Karatina PMELC No 11 of 2022. The court disposed of the objection on written submissions. Applying the Mukisa Biscuits principles, the court found the Defence's Paragraph 6 did not disclose the Karatina suit number, its parties, or how it related to this suit, so the objection required the court to investigate facts outside the pleadings - impermissible for a preliminary objection. Issues such as the Defendant's occupation since 1963 and the succession dispute could only be resolved at the hearing. The Preliminary Objection was dismissed with costs to the Plaintiff; the main suit proceeds to full trial.

Key legal issues

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01

Whether the sub judice objection qualified as a proper preliminary objection

Holding

The objection failed because the pleadings did not identify the Karatina suit, its parties, or its relationship to this suit, and the objection required factual inquiry

Reasoning

Applying Mukisa Biscuits, the court held that a preliminary objection must rest on a pure point of law on the assumption that all facts pleaded by the other side are correct. The Defence's Paragraph 6 did not mention the suit number, parties, or how the Karatina case related to this one. The court would have to search the Karatina pleadings and inquire into the parties' relationship, and questions such as whether the Defendant had lived on the land since 1963 could only be determined after hearing evidence.

p. 2

Legal principles established

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  • A preliminary objection must be a pure point of law, pleaded or arising by clear implication from the pleadings, capable of disposing of the suit without ascertaining facts or exercising discretion

Court orders

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  1. 1.The Preliminary Objection dated June 16, 2022 is dismissed
  2. 2.Costs of the Preliminary Objection awarded to the Plaintiff

Authorities

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Cases cited (1)

  • Mukisa Biscuits Manufacturing Limited -vs- West End Distributors Limited
    (1969) EA 696

    Settled principles on what constitutes a preliminary objection - a pure point of law

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) of the Constitution; Environment and Land Court Act)

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, "Guthiga v Guthiga", Case Analysis (2023). Environment & Land Case E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16482/eng@2023-03-23

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