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ELCStruck OutNot stated in judgment (Machakos ELC)· [2024] KEELC 4224 (KLR)
Maingi v Director of Surveys of Kenya & another (Environment & Land Case E013 of 2023) [2024] KEELC 4224 (KLR)
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·~6 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The Respondents filed a Notice of Preliminary Objection dated 12th October 2023 seeking dismissal of the Applicant's suit on grounds that it was fatally defective, incompetent, contra-statute and a nullity ab initio, and that the Applicant was not among the persons permitted to institute an Originating Summons under Order 37 Rule 1 of the Civil Procedure Rules, 2010. The Applicant had filed an Originating Summons dated 6th June 2023, amended on 26th January 2024, seeking orders directing the Director of Surveys to cancel overlapping FR numbers and the Chief Land Registrar to cancel certain IR numbers affecting Mavoko Block 7/53 (formerly L.R No. 337/1077), and to release the Registry Index Map, to enable implementation of a prior judgment in Machakos ELC No. 220 of 2008 in favour of Shida Moja Investment. The Respondents, though duly served, did not file a response to the Originating Summons. Relying on Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors and Autar Singh Bhamra v Oriental Commercial Bank, the court held that the issues raised require ascertainment of facts and cannot be determined at the interlocutory stage, and that the Respondents should have filed a defence first. The court found the preliminary objection premature, struck it out, directed the Respondents to file their responses within 21 days, and ordered costs in the cause. Judgment delivered virtually at Machakos on 15th May 2024 by Christine Ochieng, Judge.
Key legal issues
#01
Whether the suit should be dismissed on the ground that it is fatally defective, incompetent and contrary to Order 37 Rule 1 of the Civil Procedure Rules
Holding
The preliminary objection was premature and was struck out
Reasoning
Applying the Mukisa Biscuits test, the issues raised in the Amended Originating Summons require ascertainment of facts and cannot be resolved at the interlocutory stage. The Respondents, though served, did not file a response to the Originating Summons, leaving the averments uncontroverted, and there was an existing judgment in Machakos ELC No. 220 of 2008 on ownership whose implementation the Respondents were challenging and for which they should offer explanations.
p. 3
Legal principles established
#- A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded are correct; it cannot be raised where facts must be ascertained or judicial discretion exercised
- Where a respondent fails to file a defence expressly rebutting a claim, the claimant's averments remain unopposed
Court orders
#- 1.Notice of Preliminary Objection dated 12th October 2023 struck out as premature
- 2.Respondents to file and serve their responses to the Amended Originating Summons within twenty-one (21) days
- 3.Costs in the cause
- Jurisdiction invoked
- Article 162(2)(b) jurisdiction of the Environment and Land Court (implied); application of Order 37 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maingi v Director of Surveys of Kenya & another (Environment & Land Case E013 of 2023) [2024] KEELC 4224 (KLR)", Case Analysis (2024). Not stated in judgment (Machakos ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4224/eng@2024-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.