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ELCDismissedNot stated in the excerpt (ELC, Narok)· [2024] KEELC 5028 (KLR)

Majimoto Group Ranch v Matunke & another (Environment & Land Case E012 of 2024) [2024] KEELC 5028 (KLR)

Environment and Land Court
3 July 2024
1,288 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a preliminary objection because it required examining disputed facts, not pure points of law, so the main case proceeds.

What this practically means

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Executive summary

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The defendants filed a notice of preliminary objection dated 18th June 2024 seeking to strike out the plaintiff's notice of motion dated 11th June 2024 on six grounds: lack of locus standi on the basis that the plaintiff, a group representatives' body, was finally dissolved on 1st December 1995 with a certificate of final dissolution issued on 29th January 2024; lack of subject-matter jurisdiction because the parcels Cis/Mara/Majimoto/8 and /2076 do not exist; res judicata by reference to Nakuru ELC Misc. Application No. 234 of 2016 determined on 22nd February 2017; res sub judice by reference to ELC Petition No. 268 of 2017 decided on 8th July 2023; pendency of Court of Appeal Civil Application No. E018 of 2024; and frivolousness and abuse of process. The plaintiff, relying on a certificate of incorporation dated 16th December 2016 following a change of group representatives, and on a ruling of 24th January 2024 on the alleged dissolution, opposed the objection, arguing that the elements of res judicata are conjunctive and unproved and that the suit is not a duplicate of the earlier proceedings. The court set out the Mukisa Biscuits definition of a preliminary objection and allied authorities, holding that such an objection must raise a pure point of law arising from the pleadings, without facts to be ascertained. Since the defendants had filed no response to the motion and the objection would require the court to comb through the evidence on dissolution, the existence of the parcels and res judicata, the objection was dismissed with costs in the cause on 3rd July 2024.

Key legal issues

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01

Whether the defendants' notice of preliminary objection raises pure points of law capable of disposing of the motion

Holding

The objection was dismissed because its grounds required the court to comb through the evidence and ascertain disputed facts, defeating the purpose of a preliminary objection

Reasoning

The court applied the Mukisa Biscuits definition and related authorities: a preliminary objection must stem from the pleadings and be based on pure points of law with no facts to be ascertained. Because the defendants had not filed a response to the underlying motion, the court would have to examine the evidence on dissolution, existence of the suit parcels and res judicata, which is impermissible at a preliminary stage.

p. 3

Legal principles established

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  • 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 where facts must be ascertained or judicial discretion exercised

Court orders

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  1. 1.The notice of preliminary objection dated 18th June, 2024 is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Land (Group Representatives) ActNot specified
  • Land Adjudication ActNot specified

Cases cited (6)

  • Independent Electoral & Boundaries Commission versus Maina Kiai & 5 Others
    [2017] eKLR
  • Daniel Kipkemoi Bett & Another versus Joseph Rono
    [2022] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd versus West End Distributors Ltd
    (1969) EA 696
  • Quick Enterprises Ltd Vs Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
  • Avtar Singh Bhamra & Another versus Oriental Commercial Bank
    Kisumu HCCC No.53 of 2004
  • Oraro verus Mbaja
    (2005) 1 KLR 141
Jurisdiction invoked
Article 162(2)(b) of the Constitution / Environment and Land Court Act (original jurisdiction of the ELC; not expressly cited in the excerpt)

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, "Majimoto Group Ranch v Matunke & another (Environment & Land Case E012 of 2024) [2024] KEELC 5028 (KLR)", Case Analysis (2024). Not stated in the excerpt (ELC, Narok). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5028/eng@2024-07-03

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