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ELCDismissedNot stated in judgment· [2024] KEELC 1415 (KLR)

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)

Environment and Land Court
18 January 2024
1,439 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The 6th Defendant, the Hon. Attorney General, raised a preliminary objection dated 09.12.2022 contending that the plaintiff's suit, which challenges the Minister of Lands' decision of 10.12.2018 allowing an appeal filed thirteen years late over Land Parcel Mbeere/Kirima/554, offended Order 53 Rules 1(1), 1(2) and 2 of the Civil Procedure Rules because it was instituted by plaint instead of judicial review proceedings seeking leave with a statutory statement and verifying affidavit. The 2nd to 6th Defendants argued the court lacked jurisdiction to grant the certiorari-type reliefs sought by plaint; the 1st Defendant argued that after exhausting the Land Adjudication Act appeal process only judicial review lay, and the plaintiff's challenge to the merits contravened the law. The plaintiff countered that Order 53 is procedural, that declaratory orders on land ownership were sought in exercise of the constitutional right to property, and that the objection was not a pure point of law since facts were disputed. Judge A.K. Kaniaru, relying on the Court of Appeal's decision in Nicholas Njeru v Attorney General and PYX Granite Co. Ltd, held there is no limit to the court's power to grant declaratory orders, and Order 3 rule 9 permits binding declarations of right. The court also found the objection incompetent because all material facts were controverted and required evidence, and noted the 6th Defendant's defence admitted the court's jurisdiction. The preliminary objection was dismissed with no order as to costs.

Key legal issues

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01

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

Holding

The suit is properly before the court; a declaratory order is sought, and no statute bars approaching the court by declaratory suit.

Reasoning

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.

p. 3
02

Whether the preliminary objection met the threshold of a pure point of law

Holding

The preliminary objection failed because the material facts of the plaintiff's case are controverted and would require evidence to resolve.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The preliminary objection dated 09.12.2022 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 53 Rule 1(1)
  • Civil Procedure Rules, 2010Order 53 Rule 1(2)
  • Civil Procedure Rules, 2010Order 53 Rule 2
  • Civil Procedure Rules, 2010Order 3 rule 9
  • Land Adjudication ActAppeal process

Cases cited (9)

  • Cyril J. Haroo & Another v Uchumi Services Ltd & 3 others
    (2014) eKLR
  • Republic v Council of Legal Education & Another ex parte Sabiha Kassamia & Anor
    JR APP No. 703 of 2017
  • Owners of the Motor Vessel "Lilian S' v Caltex Oil (Kenya) Ltd
    (1989)
  • Joseph Muthee Kamau & Anor v David Mwangi Gichure & Anor
    (2013) Eklr
  • Samuel Kamau Macharia & Anor v Kenya Commercial Bank Ltd & 2 others
    (2012) Eklr
  • Nicholus Njeru v Attorney General & 8 others
    (2013) Eklr
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA
  • Independent Electoral 7 boundaries Commission v Jane Cheperenger & 2 others
    (2015) Eklr
  • PYX Granite co. Ltd Vs Ministry of Housing and Local Government
    (1958) IQB554
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

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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, "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.