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ELCDismissedEnvironment and Land Case Civil Suit E013 of 2022· [2023] KEELC 16977 (KLR)

Rono Joseph (Suing as the Personal Representative of the Late Kuuro Arap Tapkeron - Deceased) v Oldoinyo Orok Vocational Training Centre & 10 others

Environment and Land Court
25 April 2023
EWEM Washe
1,595 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 because the defendants raised it too early, before filing their defence.

What this practically means

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Executive summary

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The 1st to 10th defendants filed a preliminary objection dated January 30, 2023 seeking the striking out of the plaintiff's plaint dated October 18, 2022, principally on the ground that the suit - founded on alleged fraud in the sub-division of LR No Transmara/Barigoi/224, allegedly registered in the 2nd defendant's name and subdivided into LR Nos Transmara/Barigoi/253 and 254 - was time-barred under Sections 4 and 7 of the Limitation of Actions Act. The objection was canvassed by written submissions; the plaintiff, though served, filed none. EM Washe J framed two issues: whether the preliminary objection was merited, and costs. Relying on Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd, Nitin Properties Ltd v Singh Kalsi, and subsequent decisions including George Waweru Njuguna, Kitao Rupande and Unilever Tea Kenya Ltd, the court held that a preliminary objection must be a pure point of law arising from the pleadings, argued on the assumption that the facts pleaded by the other side are correct. Because the applicants had filed no defence - only grounds of opposition - the court could not assume the plaintiff's pleaded facts were admitted, and the objection was premature, having been raised before the close of pleadings. On costs, since the plaintiff filed no submissions, the court made no order as to costs. The preliminary objection was dismissed, leaving the suit to proceed; the limitation question itself remains open for determination at a later stage.

Key legal issues

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01

Whether a preliminary objection on limitation can be sustained before a defence is filed

Holding

No - the objection was premature because no defence was on record, so the court could not treat the plaintiff's pleaded facts as admitted or uncontested

Reasoning

The court applied Mukisa Biscuit and related authorities holding that a preliminary objection must stem from the pleadings and be a pure point of law. Since the applicants had filed no defence, only the plaintiff's pleadings were before the court, and the court could not assume the pleaded facts were admitted. Following George Waweru Njuguna, Kitao Rupande and Unilever Tea, raising the objection before close of pleadings was a procedural blunder rendering it premature.

p. 4
02

Costs of the preliminary objection

Holding

No order as to costs, because the plaintiff did not file submissions opposing the objection

Reasoning

Costs ordinarily abide the outcome, but the plaintiff/respondent filed no submissions despite service of the applicants' submissions. The court therefore declined to award costs to either side on the preliminary objection.

p. 4

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 or discretion exercised
  • A preliminary objection raised before the filing of a defence, and hence before close of pleadings, is premature and has no basis

Court orders

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  1. 1.The preliminary objection dated January 30, 2023 be and is hereby dismissed with no orders as to costs

Authorities

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Legislation

  • Limitation of Actions ActSections 4 and 7

Cases cited (7)

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

    The watershed definition of what constitutes a preliminary objection

  • David Nyekorach Matsanga & another v Philip Waki & 3 others
    (2017) eKLR

    Reaffirming the Mukisa Biscuit definition of a preliminary objection

  • Nitin Properties Ltd v Singh Kalsi & another
    [1995] eKLR

    A preliminary objection raises a pure point of law on assumed correct facts

  • Avtar Singh Bhamra & another v Oriental Commercial Bank
    KSM HCCC No 53 of 2004

    A preliminary objection must stem from the pleadings and be based on pure points of law

  • George Waweru Njuguna v Pauline Chesang Gitau Kamuyu
    (2017) eKLR

    Dismissal of a preliminary objection raised before filing of a defence

  • Kitao Rupande Partinarov Letesh Parkinaro & 4 others
    (2021) eKLR

    Preliminary objection premature where no pleadings provide a basis and facts must be ascertained

  • Unilever Tea Kenya Limited v Andrew Cheruiyot Rotich & 3 others
    (2020) eKLR

    Proper practice is to file a defence first and raise the point of law within it

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (suit concerning land LR No Transmara/Barigoi/224); ruling on a preliminary objection under civil procedure practice

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, "Rono Joseph (Suing as the Personal Representative of the Late Kuuro Arap Tapkeron - Deceased) v Oldoinyo Orok Vocational Training Centre & 10 others", Case Analysis (2023). Environment and Land Case Civil Suit E013 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16977/eng@2023-04-25

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