Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherNot stated in the judgment· [2024] KEELC 5391 (KLR)

Kidongoyia v Miranit (Enviromental and Land Originating Summons E003 of 2023) [2024] KEELC 5391 (KLR)

Environment and Land Court
24 July 2024
1,838 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court confirmed it alone hears adverse possession claims, dismissing an objection supported by evidence outside the pleadings.

What this practically means

#

Executive summary

#
The defendant filed a notice of preliminary objection dated 21st May 2024 against the plaintiff's originating summons and notice of motion dated 18th December 2023, which sought recovery of parcels Cis/Mara Naibor/Ajijik/724 and 725 by adverse possession together with injunctive relief. The defendant argued that the suit properties, valued at approximately Kshs. 14.4 million, fall below the High Court's pecuniary jurisdiction and belong before the Chief Magistrate's court, and that a pending suit at Narok Chief Magistrate's Court ELC E006 of 2024 rendered this suit sub judice contrary to Section 6 of the Civil Procedure Act. The plaintiff countered that adverse possession claims are instituted under Order 37 Rule 7 of the Civil Procedure Rules and that Section 38 of the Limitation of Actions Act vests such claims in the High Court, whose jurisdiction the Environment and Land Court acquired under Section 13 of the Environment and Land Court Act. Relying on the Mukisa Biscuits definition of a preliminary objection and the Quick Enterprises and Avtar Singh Bhamra principles, the court held that a preliminary objection must raise a pure point of law arising from the pleadings without ascertainment of facts. Since the defendant's objection was supported by documents, including a valuation report, it required the court to comb through evidence, defeating its purpose. The court further held that adverse possession claims vest in the Environment and Land Court absent amendment to the Limitation of Actions Act. The preliminary objection was dismissed with costs to the plaintiff.

Key legal issues

#
01

Whether the High Court/ELC lacks pecuniary jurisdiction over the adverse possession claim valued at about Kshs. 14.4 million

Holding

The objection fails because it required the court to examine extrinsic material (a valuation report) to ascertain value, which is impermissible in a preliminary objection; adverse possession claims vest in the ELC under Section 38 of the Limitation of Actions Act.

Reasoning

The defendant argued the subject properties were valued below Kshs. 20,000,000, placing the suit within the Chief Magistrate's pecuniary jurisdiction. The court held that a preliminary objection must be a pure point of law arising from the pleadings. The defendant's objection was supported by a valuation report, requiring the court to comb through evidence. Further, Section 38 of the Limitation of Actions Act vests adverse possession claims in the High Court, whose jurisdiction the ELC acquired under Section 13 of the Environment and Land Court Act.

p. 4
02

Whether the suit is sub judice owing to a pending matter in Narok Chief Magistrate's Court ELC E006 of 2024, contrary to Section 6 of the Civil Procedure Act

Holding

The sub judice ground fails for the same reason: establishing it required ascertaining facts from documents outside the pleadings, defeating the purpose of a preliminary objection.

Reasoning

The defendant contended that a prior suit before the magistrates' court concerned the same subject parcels and offended Section 6 of the Civil Procedure Act. The court applied the Mukisa Biscuits and Quick Enterprises principles, holding that a preliminary objection must be decided on the pleadings alone without ascertaining facts elsewhere. Because the objection was accompanied by supporting documents, it could not stand as a preliminary objection.

p. 4

Legal principles established

#
  • 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 have to be ascertained.
  • Claims of adverse possession under Section 38 of the Limitation of Actions Act are to be heard and determined by the Environment and Land Court, not magistrates' courts, absent amendment to the Act.
  • A preliminary objection accompanied by supporting documents, requiring the court to comb through evidence, is defective.

Court orders

#
  1. 1.The notice of preliminary objection dated 21st May, 2024 is dismissed
  2. 2.Costs of the preliminary objection to the plaintiff

Authorities

#

Legislation

  • Civil Procedure ActSection 6
  • Magistrates ActSection 9(a)
  • Environment and Land Court ActSections 26 and 13
  • Magistrates’ Courts ActSection 7(1)
  • Limitation of Actions ActSection 38
  • Civil Procedure RulesOrder 37 Rule 7

Cases cited (10)

  • Samuel Kamau Macharia & Another versus Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Mukisa Biscuit Manufacturing Co. Limited versus West End Distributors Limited
    (1969) EA 696
  • Owners of the Motor Vessel “Lillian S” versus Caltex Oil (Kenya) Limited
    [1989] eKLR
  • Kenya Bankers Association versus Kenya Revenue Authority
    [2019] eKLR
  • Republic versus Eldoret Water & Sanitation Company Limited Exparte Booker Onyango & 2 Others
    [2007] eKLR
  • In the Matter of Interim Independent Electoral Commission
    [2011] eKLR
  • Mtana Lewa versus Kahindi Ngala Mwagandi
    [2015] eKLR
  • Reuben versus Mwangangi & 7 Others
    (Environment & Land Case E011 of 2023) [2023] KEELC 21899 (KLR)
  • 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
Jurisdiction invoked
Section 13 of the Environment and Land Court Act and Section 38 of the Limitation of Actions Act (adverse possession claims vested in the ELC/High Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kidongoyia v Miranit (Enviromental and Land Originating Summons E003 of 2023) [2024] KEELC 5391 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5391/eng@2024-07-24

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