Njagi (Suing as the Legal Representative of the Estate of Henry Njagi Njogu) v Mwathi (Sued as the Legal Representative of Gatumu Kiricho – Deceased) & 5 others (Environment & Land Case E026 of 2022) [2024] KEELC 1415 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that a landowner can sue by ordinary plaint for a declaration, even where judicial review was another option.
What this practically means
#Executive summary
#Key legal issues
#Whether a declaratory suit challenging the Minister's decision under the Land Adjudication Act is improperly before the court for not being brought by judicial review under Order 53
The suit is properly before the court; a declaratory order is sought, and no statute bars approaching the court by declaratory suit.
Relying on the Court of Appeal's holding in Nicholas Njeru v Attorney General, which drew on PYX Granite Co. Ltd v Ministry of Housing and Local Government, the court noted there is no limit to its power to grant declaratory orders. Order 3 rule 9 of the Civil Procedure Rules expressly permits binding declarations of right whether or not consequential relief is claimed. Since prayer (b) of the plaint sought a declaratory order on which the other reliefs depended, the court could not refuse to entertain the suit merely because judicial review was another avenue. The court also noted the contradiction that the 6th defendant's defence admitted the court's jurisdiction.
Whether the preliminary objection met the threshold of a pure point of law
The preliminary objection failed because the material facts of the plaintiff's case are controverted and would require evidence to resolve.
Citing the settled principle from Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd as reflected in the plaintiff's submissions, the court held that a preliminary objection rests on admitted or incontrovertible facts. In this case all material aspects of the plaintiff's case were disputed - ownership of the suit land and the alleged fraudulent cancellation of the deceased father's name from the register - so the court would require evidence to prove or disprove the facts. A preliminary objection therefore could not suitably or competently be raised.
Legal principles established
#- A court is not barred from entertaining a suit merely because the plaintiff could have approached the court through judicial review, where a declaratory order is sought; there is no limit to the court's power to grant declaratory orders.
- A preliminary objection can only competently be raised if the facts are admitted or incontrovertible; where facts are controverted and require evidence, a preliminary objection is incompetent.
Court orders
#- 1.The preliminary objection dated 09.12.2022 is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court) - not expressly stated in the ruling; suit concerns ownership of Land Parcel Mbeere/Kirima/554
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njagi (Suing as the Legal Representative of the Estate of Henry Njagi Njogu) v Mwathi (Sued as the Legal Representative of Gatumu Kiricho – Deceased) & 5 others (Environment & Land Case E026 of 2022) [2024] KEELC 1415 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1415/eng@2024-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.