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ELCDismissed· [2024] KEELC 5390 (KLR)

Jashbahi v Nampaso & another (Environment & Land Case E014 of 2024) [2024] KEELC 5390 (KLR)

Environment and Land Court
24 July 2024
2,285 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court dismissed a preliminary objection because the defendant attached evidence to it, confirming such objections must be pure points of law.

What this practically means

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Executive summary

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The 1st defendant filed a notice of preliminary objection dated 4th July 2024 against the plaintiff's application dated 11th June 2024 in an Environment and Land Court suit concerning parcel Narok Township/132. The objection raised three grounds: first, that the suit belonged before the Chief Magistrate's Court because the subject property was valued at Kshs 3,500,000, within the magistrates' pecuniary jurisdiction under Section 7(1) of the Magistrates' Courts Act; second, that a pending suit, CMCC ELC Case No. E041 of 2022 at Narok, rendered the instant suit sub judice under Section 6 of the Civil Procedure Act; and third, that affidavits sworn by a notary public in the United States, outside the Commonwealth, offended Section 88 of the Civil Procedure Act. The plaintiff opposed, arguing the objection was spurious because it relied on documentary evidence (a valuation requisition rather than a valuation report) not founded on the pleadings, that the issues in the two suits differed, and that under Section 18 of the Civil Procedure Act the court could transfer rather than strike out the suit. The court, applying the Mukisa Biscuits definition of a preliminary objection, held that the objection was defeated because the defendant annexed evidence in support; that the sub judice question required ascertainment of facts outside the pleadings; and, relying on Peeraj General Trading, that the affidavits sworn in the United States, where the plaintiff resides, were properly on record. The preliminary objection was dismissed with costs in the cause.

Key legal issues

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01

Whether the preliminary objection on pecuniary jurisdiction was properly raised

Holding

The objection failed because the defendant attached documentary evidence (a Valuation Requisition for Stamp Duty) in support, taking the objection outside the pleadings.

Reasoning

Applying Mukisa Biscuits, a preliminary objection must be a pure point of law argued on the assumption that the facts pleaded by the other side are correct. The 1st defendant annexed a valuation requisition to prove the value of the suit property, requiring the court to look outside the pleadings. Where evidence is needed to sustain an objection, the objection is defeated.

p. 4
02

Whether the suit is sub judice given CMCC ELC Case No. E041 of 2022

Holding

The sub judice ground could not succeed on a preliminary objection as it required ascertainment of facts through evidence.

Reasoning

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. Determining whether the issues and parties in CMCC ELC No. E041 of 2022 overlap with the instant suit requires comparison of pleadings and evidence, which is outside the pure point of law contemplated for preliminary objections.

p. 4
03

Whether affidavits sworn before a notary public in the United States, outside the Commonwealth, offend Section 88 of the Civil Procedure Act

Holding

The affidavits were properly on record; the pleadings were properly before the court.

Reasoning

Although the supporting and verifying affidavits were sworn in the United States by Mary Ellen King of the Commonwealth of Virginia, the plaintiff deponed that he resides in the United States, so the depositions could only be witnessed by a person duly authorized in that jurisdiction. Reliance was placed on Peeraj General Trading on proof of foreign affidavits.

p. 5

Legal principles established

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  • A preliminary objection must stem from the pleadings and raise a pure point of law; where a party annexes evidence in support of the objection, the objection is defeated.
  • Whether a suit is sub judice under Section 6 of the Civil Procedure Act requires ascertainment of facts and cannot properly be determined on a preliminary objection.

Court orders

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  1. 1.The notice of preliminary objection dated 4th July, 2024 is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 6
  • Civil Procedure Act, Cap 21Section 9(a) (as pleaded by the 1st defendant; actually a provision of the Magistrates' Courts Act)
  • Civil Procedure Act, Cap 21Section 18
  • Civil Procedure Act, Cap 21Section 88
  • Magistrates' Courts ActSection 7(1)
  • Magistrates' Courts ActSection 26 (as invoked; jurisdiction conferred under the Environment and Land Court Act, Cap 12A)
  • Environment and Land Court Act, Cap 12ASection 26 (as referred to in the objection)
  • Evidence Act, Cap 80Section 88 (as referred to in Peeraj General Trading)

Cases cited (11)

  • Samuel Kamau Macharia & Another versus Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Owners of the Motor Vessel "Lillian S" versus Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Republic versus Paul Kihara Kariuki, Attorney General & 2 Others; Ex-parte Law Society of Kenya
    [2020] eKLR
  • SOCAF & Company Limited v John Maina Njoroge & 5 Others; Francis Ngau Musyoki (Interested Party)
    [2022] eKLR
  • Francis Karioko Muruatetu & Another v Republic & 5 Others
    [2016] eKLR
  • Raccolta Molnar & Greiner versus Royal Trading Company Limited
    [2014] eKLR
  • Qad Software South Africa (Pty) Limited v Rift Valley Railways Investments (Pty) Limited
    [2013] eKLR
  • Peeraj General Trading & Contracting Company Limited, Kenya & Another v Mumias Sugar Company Limited
    [2016] eKLR
  • Quick Enterprises Ltd v Kenya Railways Corporation, Kisumu HCCC No.22 of 1999
  • Avtar Singh Bhamra & Another v Oriental Commercial Bank, Kisumu HCCC No.53 of 2004
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (Cap 12A) and the Magistrates' Courts Act (pecuniary jurisdiction raised in objection)

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, "Jashbahi v Nampaso & another (Environment & Land Case E014 of 2024) [2024] KEELC 5390 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5390/eng@2024-07-24

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