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ELCDismissedEnvironment & Land Case E030 of 2023· [2023] KEELC 21861 (KLR)

Kiminda & another v Pindoriya t/a Harshiv Autospares & Hardware Suppliers & 2 others; Otieno & 5 others (Interested Parties)

Environment and Land Court
23 November 2023
COChristine Ochieng
1,619 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Machakos refused to strike out a land dispute, ruling the defendants' early objection was premature because real facts still needed a full hearing.

What this practically means

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Executive summary

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The 1st to 3rd Defendants filed a Notice of Preliminary Objection dated 8th June 2023 seeking dismissal of the Plaintiffs' suit on grounds that it was sub judice under Section 6 of the Civil Procedure Act, owing to two pending suits before the Chief Magistrate's Court at Mavoko (Mcelc No. E035 of 2023 and E036 of 2023) concerning the same land, LR Nos. 20449 and 20450, and that the suit was frivolous and an abuse of process. The Plaintiffs opposed, relying on Article 162(2) of the Constitution, and contended that the Magistrate's Court had on 12th September 2023 renounced jurisdiction because the valuations of the suit properties (Kshs 25,680,000 and Kshs 42,245,440) exceeded its Kshs 20,000,000 cap, and that the Defendants had under-valued the properties to forum shop. The Defendants argued the properties were worth Kshs 15,000,000 each, within the lower court's jurisdiction. Canvassed by written submissions, the court framed one issue: whether the preliminary objection was merited and whether the court had jurisdiction. Applying Mukhisa Biscuit and Avtar Singh Bhamra, and noting the Defendants had not filed Statements of Defence, the court held that issues of trespass, fraud and beneficial ownership required a full hearing and could not be resolved on a preliminary objection. Relying on Section 13 of the Environment and Land Court Act and Article 162(2)(b), it found the ELC clothed with jurisdiction, disallowed the objection as premature, directed the Defendants to file their defences within 21 days, and ordered costs in the cause.

Key legal issues

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01

Whether the suit was sub judice under Section 6 of the Civil Procedure Act

Holding

The preliminary objection was premature and disallowed; the court found it had jurisdiction over the suit

Reasoning

The court noted the Defendants had not filed Statements of Defence to controvert the Plaintiffs' averments. The Plaint raised issues of trespass, fraud and beneficial ownership which needed to be expressly rebutted and ascertained at a full hearing, so they could not be resolved on a preliminary objection. Relying on Section 13 of the ELC Act and Article 162(2)(b), the court held it had jurisdiction.

02

Whether the preliminary objection was a proper pure point of law

Holding

The objection was improper because the matters raised required ascertainment of facts

Reasoning

Applying Mukhisa Biscuit and Avtar Singh Bhamra, the court observed that a preliminary objection must be a pure point of law on assumed facts. The issues in the Plaint, including trespass, fraud and beneficial ownership, required factual ascertainment at a full hearing, making the objection premature.

p. 4

Legal principles established

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  • A preliminary objection cannot be sustained where facts must be ascertained or where the issues raised require a full hearing
  • The Environment and Land Court has wide jurisdiction over environment and land matters under Article 162(2)(b) and Section 13 of the ELC Act

Court orders

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  1. 1.The Notice of Preliminary Objection dated 8th June 2023 is disallowed as premature
  2. 2.Defendants to file and serve their Statements of Defence within twenty one (21) days from the date of the ruling
  3. 3.Costs in the cause
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the 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, "Kiminda & another v Pindoriya t/a Harshiv Autospares & Hardware Suppliers & 2 others; Otieno & 5 others (Interested Parties)", Case Analysis (2023). Environment & Land Case E030 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21861/eng@2023-11-23

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