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ELCStruck Out· [2024] KEELC 910 (KLR)

Not stated in the judgment (plaintiffs v 3rd, 4th and 5th defendants)

Environment and Land Court
26 February 2024
2,296 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Landowners in an adjudication section must first use the Land Adjudication Act's objection and appeal process before suing, or their case will be dismissed.

What this practically means

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Executive summary

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The 3rd, 4th and 5th defendants filed a notice of preliminary objection dated 7th July 2023 against the plaintiffs' amended plaint dated 31st January 2023, contending that the claim offended Sections 26(1) and 29(1) of the Land Adjudication Act, Cap 284, because the plaintiffs neither objected to the adjudication register within 60 days of publication of the notice of completion on 21st July 2014, nor appealed the determination to the Minister within 60 days. The objection was canvassed by written submissions, the plaintiffs contending that the court had jurisdiction over land matters and constitutional violations requiring scrutiny of evidence. The court first restated the test for a preliminary objection (Mukisa Biscuits; Oraro v Mbaja; Quick Enterprises; Avtar Singh Bhamra), confining itself strictly to the pleadings. It noted that the plaintiffs' own pleadings admitted the suit property lay within an adjudication section, that they did not plead filing a timely objection (their request to object was denied for lapse of time), and that they had recourse to appeal to the Minister. Applying Speaker of the National Assembly v James Njenga Karume, the court held that the prescribed statutory procedure should have been strictly followed and that the plaintiffs failed to exhaust the dispute resolution mechanisms under the Act. Finding merit in the objection, the court dismissed the amended plaint with costs to the 3rd, 4th and 5th defendants. Judgment was delivered via email on 26th February 2024 by Mbogo C.G., Judge.

Key legal issues

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01

Whether the preliminary objection satisfied the test for a preliminary objection (a pure point of law arising from the pleadings)

Holding

Yes - the objection was confined to the pleadings and raised a pure point of law on statutory procedure, not disputed facts

Reasoning

The court restated the Mukisa Biscuits definition and Oraro v Mbaja, holding that a preliminary objection must stem from the pleadings and raise a pure point of law with no facts to be ascertained. The court confined itself strictly to the pleadings, finding the objection did not require resolution of disputed facts but turned on the plaintiffs' own pleaded failure to use the statutory mechanism.

p. 3
02

Whether the plaintiffs' suit offended Sections 26(1) and 29(1) of the Land Adjudication Act for failure to exhaust the statutory dispute resolution mechanism

Holding

Yes - the plaintiffs, whose land was in an adjudication section, had recourse under the Act and failed to file an objection or appeal to the Minister; the suit was prematurely before the court

Reasoning

The pleadings admitted the suit property was within an adjudication section. The plaintiffs did not plead filing any objection within the stipulated period; what occurred was a denial of their request to object owing to lapse of time. The court held they had recourse under Section 30(3) to appeal to the Minister over the denial, and relying on Speaker of the National Assembly v Karume, the prescribed procedure should have been strictly followed.

p. 6

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained or if judicial discretion is sought
  • Where there is a clear procedure for redress of a particular grievance prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed
  • A party aggrieved by an adjudication process must exhaust the dispute resolution mechanisms provided under the Land Adjudication Act before seeking recourse from the court

Court orders

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  1. 1.The amended plaint dated 31st January 2023 is dismissed with costs to the 3rd, 4th and 5th defendants
Jurisdiction invoked
Jurisdiction of the Environment and Land Court over matters relating to land, as conceded by the court ('this court has jurisdiction to hear and determine all matter relating to land'); the objection turned on exhaustion of the dispute resolution mechanism in the Land Adjudication Act, Cap 284

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, "Not stated in the judgment (plaintiffs v 3rd, 4th and 5th defendants)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/910/eng@2024-02-26

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