Jashbahi v Nampaso & another (Environment & Land Case E014 of 2024) [2024] KEELC 5390 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the preliminary objection on pecuniary jurisdiction was properly raised
The objection failed because the defendant attached documentary evidence (a Valuation Requisition for Stamp Duty) in support, taking the objection outside the pleadings.
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.
Whether the suit is sub judice given CMCC ELC Case No. E041 of 2022
The sub judice ground could not succeed on a preliminary objection as it required ascertainment of facts through evidence.
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.
Whether affidavits sworn before a notary public in the United States, outside the Commonwealth, offend Section 88 of the Civil Procedure Act
The affidavits were properly on record; the pleadings were properly before the court.
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.
Legal principles established
#- 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
#- 1.The notice of preliminary objection dated 4th July, 2024 is dismissed
- 2.Costs in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.