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ELCOtherNot stated in the provided judgment· [2024] KEELC 3618 (KLR)

Morigi v National Land Commission & 2 others (Environment & Land Case E035 of 2023) [2024] KEELC 3618 (KLR)

Environment and Land Court
6 May 2024
COChristine Ochieng
1,290 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a preliminary objection because the defendant had not filed a defence, so the case now proceeds to full hearing.

What this practically means

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Executive summary

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This is a ruling on the 2nd Defendant's Notice of Preliminary Objection dated 22nd November 2023, seeking dismissal of the Plaintiff's Plaint and Notice of Motion dated 3rd October 2023 with costs. The objection asserted that the Environment and Land Court lacked jurisdiction because the dispute, concerning compulsory acquisition of a portion of the Plaintiff's land, LR No. Athi River/Athi River Block 1 (Chumvi)/30 measuring 0.1951 Ha, should first go to the Land Acquisition Tribunal under the Land Act, 2012. The 2nd Defendant argued the suit was premature, defective and an abuse of process, relying on authorities on exhaustion of statutory remedies and jurisdiction. The Plaintiff contended the court had jurisdiction because beyond compensation for the acquired portion, he pleaded damage to the whole plot and sought damages; the Defendants also failed to file Defences. The court applied the Mukhisa Biscuits doctrine that a preliminary objection must raise a pure point of law on assumed pleaded facts, together with Avtar Singh Bhamra and IEBC v Jane Cheperenger. Noting the Plaintiff had pleaded issues, including partial payment of the award and damages, which required factual rebuttal the Defendants never offered, the court held that where a Defendant files no Defence the claim remains unopposed and an objection must stem from pleadings. The objection, not anchored on a Defence, was premature and was struck out with no order as to costs. The Defendants were directed to file and serve their Defences within twenty-one days.

Key legal issues

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01

Whether the 2nd Defendant's preliminary objection, founded on lack of jurisdiction and want of exhaustion of the Land Acquisition Tribunal dispute mechanism under the Land Act, could stand

Holding

The preliminary objection failed and was struck out because it was premature, not anchored on a Defence, and raised matters requiring factual ascertainment

Reasoning

Applying Mukhisa Biscuits, a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded are correct. The Plaintiff had raised issues in the Plaint, including partial payment of the award and damages, which required rebuttal by the Defendants. The Defendants filed no Defence to controvert the Plaintiff's averments. An objection must stem from the pleadings, and one not anchored on a Defence is premature.

p. 3

Legal principles established

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  • A preliminary objection must stem from the pleadings and raise a pure point of law; where a defendant fails to file a defence rebutting the plaintiff's averments, the claim remains unopposed and an objection not anchored on a defence is premature

Court orders

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  1. 1.The 2nd Defendant's Notice of Preliminary Objection is struck out
  2. 2.No order as to costs
  3. 3.Defendants to file and serve their respective Defences within twenty one (21) days from the date of the ruling

Authorities

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Legislation

  • Land ActSections 107A, 111, 112, 113, 115, 118, 119, 120, 125 and 133C
  • Land ActSection 133D

Cases cited (14)

  • Giciri Thuo & 5 Others v National Land Commission & 4 Others; Kenya Human Rights Commission (Interested Party); Dorcas Wairimu Kamau & 154 Others (Intended Interested Parties)
    (2022) eKLR
  • Mississippi Water Limited v Kenya Railways Staff Retirement Benefits Scheme & another; Kenya National Highways Authority & another (Interested Parties)
    (Environment & Land Case E 212 of 2020)(2023) KEELC 16859 (KLR) (18 April 2023)
  • Benson Ambuti Adega & 2 Others v Kibos Distillers Ltd & 25 Others
    (2020) eKLR
  • R v Karisa Chengo
    (2017) eKLR
  • Speaker of the National Assembly v James Njenga Karume
    (1992) eKLR
  • Kibos Distillers Limited & 4 Others v Benson Ambuti Adega & 3 Others
    (2020) eKLR
  • Samuel Macharia & another v Kenya Commercial Bank Limited & 2 Others
    (2012) eKLR
  • William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties)
    Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019
  • Mukhisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited
    (1969) EA 696
  • Avtar Singh Bhamra & another v Oriental Commercial Bank
    Kisumu HCCC No. 53 of 2004
  • Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 Others
    Civil Application No. 36 of 2014
  • Moses Wanjala Lukoye v Bernard Alfred Wekesa Sambu & 3 Others
    (2013) eKLR
  • Francis Atanasio Kithure v County Government of Meru; Ethics & Anti-Corruption Commission (Interested Party)
    (2021) eKLR
  • Mradula Suresh Kantaria & Suresh Nanillal Kantaria
    Civil Appeal No. 277 of 2005 (unreported)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (Article 162(2)(b) jurisdiction implied); judgment does not state the enabling provision

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, "Morigi v National Land Commission & 2 others (Environment & Land Case E035 of 2023) [2024] KEELC 3618 (KLR)", Case Analysis (2024). Not stated in the provided judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3618/eng@2024-05-06

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