Nirestein & another v Taga & 3 others (Environment and Land Case E003 of 2024) [2024] KEELC 3335 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed an attempt to strike out a land dispute lawsuit, confirming preliminary objections can't rely on facts needing evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC lacks jurisdiction because the dispute is commercial in nature
The court declined to strike out the plaint on this ground; although some prayers fall outside its jurisdiction, that does not warrant striking out the plaint, and the court may simply decline to grant those prayers if the plaintiffs succeed at trial
The court perused the plaint and its prayers, finding that many fall within Section 13(2) of the ELC Act, including declarations over title, trust over land, specific performance to transfer land, injunctions over land and mesne profits relating to Cis-Mara/Talek parcels. Whether the claim is purely commercial would require combing through the evidence, which is inappropriate on a preliminary objection. Some prayers overlap with High Court matters and may simply not be granted by this court.
Whether the suit is res sub judice given the pending High Court suit Civil Suit No. E001 of 2024
The court could not determine sub judice because the defendants did not supply the pleadings from the High Court suit
Section 6 of the Civil Procedure Act bars trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit. However, the court must examine the substance of the pleadings in both suits. The defendants' annexures did not include a copy of the plaint said to be filed at the High Court, so the court could not ascertain whether the issues were the same. This factual deficiency also rendered the point unsuitable for a preliminary objection.
Whether the 2nd plaintiff, allegedly an unincorporated trust, has legal capacity to sue
The issue could not be resolved on a preliminary objection as it requires evidence; the defendants should raise it in their defence
The defendants contended the 2nd plaintiff was not incorporated under Section 3 of the Trustees (Perpetual Succession) Act, having only lodged an application for registration. The court held that establishing whether the 2nd plaintiff is registered would require the court to comb through the evidence, which ousts the preliminary objection. The proper course is for the defendants to file a defence and the plaintiffs to respond through evidence on the trust's registration.
Legal principles established
#- A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if facts have to be ascertained or judicial discretion exercised
- A court without jurisdiction must down tools immediately
Court orders
#- 1.The notice of preliminary objection dated 1st March, 2024 is dismissed.
- 2.Costs in the cause.
- 3.Mention on 7th May, 2024 for further directions.
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya, 2010 read with Section 13 of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nirestein & another v Taga & 3 others (Environment and Land Case E003 of 2024) [2024] KEELC 3335 (KLR)", Case Analysis (2024). ELC Case No. E003 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3335/eng@2024-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.