Kimali v Muthembwa & another (Environment & Land Case E022 of 2022) [2024] KEELC 794 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection was a pure point of law
The objection on jurisdiction was a pure point of law capable of determining the matter without inquiry into the merits.
The Court restated the Mukisa Biscuits test that a preliminary objection must rest on law, not disputed facts or evidence. It found the jurisdictional challenge satisfied that standard, so it proceeded to determine the objection on its merits rather than rejecting it as fact-laden. However, the later locus standi argument raised in submissions was treated as an inadmissible fresh objection.
Whether the Environment and Land Court has jurisdiction over the suit
The Court has jurisdiction, since the Plaintiff's claims are based on occupation and ownership of land, engaging Article 162(2)(b) and Section 13 of the Environment and Land Court Act.
The Court traced its jurisdiction to Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. The Plaint pleaded fraudulent subdivision of the suit property and sought relief based on occupation and ownership of land. Relying on Republic v Senior Principal Magistrate Shanzu, the Court held that once a dispute touches on land, jurisdiction attaches regardless of the forum of origin.
Whether the Defendants could raise the Plaintiff's lack of locus standi (absence of a grant) as part of the preliminary objection
The argument that the Plaintiff lacked capacity under Sections 79 and 82 of the Law of Succession Act was a fresh preliminary objection improperly raised in submissions and could not be entertained.
Counsel for the Defendants introduced, at paragraph 13 of submissions, a new objection that the Plaintiff lacked locus standi for want of a grant of representation. The Court held that introducing a fresh preliminary objection mid-submissions ambushes the opponent, citing Grace Mwenda Munjuri on the duty of full disclosure when seeking to strike out a claim.
Legal principles established
#- A fresh preliminary objection may not be raised midway within counsel's submissions as that amounts to an ambush.
- The Environment and Land Court's jurisdiction under Article 162(2)(b) is not excluded merely because the dispute originated in another forum, as long as the dispute touches on land and environment.
Court orders
#- 1.The Preliminary Objection dated 13th September, 2022 is dismissed with costs to the Plaintiffs.
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimali v Muthembwa & another (Environment & Land Case E022 of 2022) [2024] KEELC 794 (KLR)", Case Analysis (2024). not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/794/eng@2024-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.