Pertet & another v Manche (Suing as the Administrators and Personal Representatives of the Estate of Samwel Waweru Manji - Deceased) & 3 others
The bottom line
#Kenya's Environment and Land Court struck out a land suit filed against orders that were never reviewed or set aside, and awarded costs against the plaintiff.
What this practically means
#Executive summary
#Key legal issues
#Whether the limitation defence was a pure point of law
Although Section 7 limitation is ordinarily a point of law, here the date the cause of action accrued was contested in the pleadings, so it could not be determined on a preliminary objection
The plaint did not plead when the cause of action arose; the 1st respondent said they learnt later of the fraud, while the defence pleaded 1991. Determining when time began to run would require the trial court to immerse itself in the evidence, defeating the essence of a preliminary objection.
Whether the suit sought to overturn the unchallenged dismissal order of 24th March 2009 in Nakuru HCCC No 416 of 1997
The trial court failed to address ground 1(b) of the preliminary objection; the dismissal orders were valid and in force and could only be disturbed by review or setting aside, so the trial court could not proceed with the suit
The record of appeal contained the proceedings leading to dismissal for want of prosecution, and that fact was undisputed. The orders had never been reviewed or set aside. The proper course for the 1st respondent was to apply for review or setting aside; failing that, the trial court could not proceed with the suit.
Whether the appellants were proper parties capable of being sued
The defect was not fatal and could be cured by amendment; Article 159(2)(d) of the Constitution applies
The 2nd appellant was described as personal representative of the estate. The court found the issue curable by amendment and invoked the overriding objective and rules of natural justice as noted by the trial court.
Pecuniary jurisdiction of the trial court
Without a valuation report the court could not conclusively determine that the trial court lacked pecuniary jurisdiction
The trial court noted its pecuniary limit of Kshs 20,000,000 but found nothing in the suit to establish the value of the land; the appellate court agreed no valuation report supported the claim.
Legal principles established
#- A preliminary objection must be a pure point of law arising from the pleadings; where facts are contested and evidence is required, it fails
- A suit barred by limitation is barred by law and the court cannot grant the relief sought
- On a first appeal the court revisits the evidence and arrives at its own conclusion
Court orders
#- 1.The ruling of Hon. G.N. Wakahiu delivered on 15th September, 2020 is set aside
- 2.The notice of preliminary objection dated 20th January, 2020 partially succeeds in terms of ground 1 (b)
- 3.The plaint dated 29th October, 2019 offends the provisions of Orders 12 Rule 6 (b) of the Civil Procedure Rules and is struck out
- 4.The 1st respondent to pay costs of this appeal and the costs in the subordinate court
- On appeal from
- Chief Magistrate's Court at Narok
- Narok CMCC No. 138 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court under the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pertet & another v Manche (Suing as the Administrators and Personal Representatives of the Estate of Samwel Waweru Manji - Deceased) & 3 others", Case Analysis (2023). Environment and Land Appeal 27 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20974/eng@2023-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.