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ELCDismissedNot stated in the extract (referenced suits: ELC JR Application Case No. 4 of 2019; ELC Misc Case E013 of 2021; ELC JR No. 4 of 2019)· [2024] KEELC 4078 (KLR)

Republic v National Land Commission & 2 others; Almer Farm Limited (Exparte Applicant) (Environment and Land Judicial Review Case 4 of 2019) [2024] KEELC 4078 (KLR)

Environment and Land Court
7 May 2024
FNFRED NYAGAKA
1,600 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 dismissed a preliminary objection because the issues raised needed evidence, not just legal argument.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Kitale on a Preliminary Objection raised by the ex parte Applicant against a Notice of Motion dated 11/10/2022 filed by the 3rd Respondent, Betty Rono. The Motion sought orders compelling the County Surveyor, Trans Nzoia County, to survey and carve out 400 acres from 1198 acres of LR No. 8490, with police supervision from the OCS Cherangany Police Station, on grounds including that the Respondent fraudulently obtained the Applicant's land and that three prior suits against the Applicant had been dismissed with costs. The ex parte Applicant objected on three grounds: that the application sought remedies against the wrong party (Alma Farms Limited rather than Almer Farms Limited as named in the Gazette Notice), that it usurped the jurisdiction of the courts on land ownership, and that it was an abuse of process. In written submissions the Applicant argued the application was premature, that the National Land Commission's recommendation to excise 400 acres was not binding and had not been acted on, that the statutory three-year period under section 15(10) of the National Land Commission Act had lapsed, and that the application was against the wrong party given corporate separateness under Salomon v Salomon. The court, applying Mukisa Biscuits and related authorities, held that the grounds in the application required factual and evidentiary proof and could not be disposed of as pure points of law. The Preliminary Objection was dismissed with costs to the ex parte Applicant, and the substantive application was directed to be heard virtually on 06/06/2024, with strict page limits on submissions.

Key legal issues

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01

Whether the Preliminary Objection raised by the ex parte Applicant was merited

Holding

The objection was dismissed; the grounds in the application required factual and evidentiary proof and therefore could not be disposed of as pure points of law

Reasoning

Applying the Mukisa Biscuits definition, the court found that the grounds in the application - the alleged fraud, the manner the land was obtained, the measurements of the parcel, and the dismissal of three prior suits - each required evidentiary support by affidavit and documentary proof. Because the determination of these matters depended on ascertaining facts rather than pure law, the Preliminary Objection could not stand and was dismissed with costs to the ex parte Applicant.

p. 3

Legal principles established

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  • A preliminary objection is grounded on points of law, not facts, and must be determinable without ascertainment of facts or exercise of judicial discretion

Court orders

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  1. 1.Preliminary Objection to the application dated 11/10/2022 dismissed with costs to the ex parte Applicant
  2. 2.Application dated 11/10/2022 to be heard virtually on 06/06/2024 at 8:30 AM
  3. 3.Any party who has not filed submissions to do so within seven (7) days, strictly not exceeding two pages, Times New Roman Font 12, 1.5 spacing; parties to annex and highlight any authority relied on

Authorities

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Legislation

  • National Land Commission Actsection 15(10)

Cases cited (10)

  • Mukisa Biscuits Manufacturing Company Limited v West End Distributors Limited
    [1969] EA 696
  • John Masakali v Speaker of County Bungoma & 4 others
    (2015) eKLR
  • Oraro v Mbaja
    [2005] KLR 141
  • Union of Kenya Civil Servants v Kenya County Government Workers Union and another
  • Ako v Special District Commission Kisumu and another
  • Wilson Osolo v John Ojiambo Ochoa & another
  • Mwangi Stephen Muriithi v The National Land Commission & 3 others
    [2018] eKLR
  • Salomon v Salomon & Co. Limited
    (1897) AC.1
  • Bashir Haji Abdullahi v Adan Mohammed Noor & 3 others
    [2004] eKLR
  • Susan Wairimu Ndiangui v Pauline W. Thuo & another
    [2005] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes; not expressly stated in the extract

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, "Republic v National Land Commission & 2 others; Almer Farm Limited (Exparte Applicant) (Environment and Land Judicial Review Case 4 of 2019) [2024] KEELC 4078 (KLR)", Case Analysis (2024). Not stated in the extract (referenced suits: ELC JR Application Case No. 4 of 2019; ELC Misc Case E013 of 2021; ELC JR No. 4 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4078/eng@2024-05-07

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