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ELCDismissedNot stated in the judgment as provided (Machakos ELC suit)· [2024] KEELC 5563 (KLR)

Antidote Agencies Limited v Tysons Limited & another (Environment & Land Case E037 of 2023) [2024] KEELC 5563 (KLR)

Environment and Land Court
29 July 2024
1,678 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

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What this practically means

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Executive summary

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The 2nd Defendant filed a Notice of Preliminary Objection dated 25 October 2023 against the Plaintiff's Notice of Motion dated 5 October 2023 and the entire suit. It contended that the court's jurisdiction had been wrongly invoked, since the substratum of the dispute was a claim for recovery of money under an Agency Agreement rather than a dispute relating to environment and land under section 13 of the Environment and Land Court Act; that the 2nd Defendant was not party to the Agency Agreement and could not be bound by its arbitration clause; and that the suit disclosed no cause of action against it and should be struck out. The Plaintiff argued the objection was incompetent, that the relief sought targeted immovable property (LR No. 8786, approximately 745 acres) within the court's jurisdiction, and that the 2nd Defendant was properly enjoined as principal of its agent. Relying on the Mukhisa Biscuit definition of a preliminary objection, the court framed two issues: its jurisdiction and whether the 2nd Defendant was properly joined. It held that because the 2nd Defendant never filed a Defence expressly denying the Plaintiff's averments or pleading misjoinder, the claim remained uncontroverted and the objection was not anchored on pleadings as required by law, rendering it premature. The court struck out the preliminary objection, directed the Defendants to file Defences within 21 days, and ordered costs in the cause.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction over a claim founded on an Agency Agreement relating to marketing services and commissions over land

Holding

The court did not reach a definitive finding on jurisdiction; it struck out the preliminary objection as premature because the 2nd Defendant had not filed a Defence pleading misjoinder

Reasoning

The court applied the Mukhisa Biscuit test, requiring a pure point of law arising from pleadings. Since the 2nd Defendant never filed a Defence expressly denying the Plaintiff's averments or pleading misjoinder, the objection was not anchored on pleadings as required. The claim, involving land belonging to the 2nd Defendant and injunctive relief over LR No. 8786, remained uncontroverted, making the objection premature.

p. 4
02

Whether the 2nd Defendant was properly joined in the suit

Holding

The misjoinder contention could not succeed on a preliminary objection absent a Defence pleading it

Reasoning

The court noted that the Plaintiff's claim involved marketing and removal of squatters on land belonging to the 2nd Defendant, and the Agency Agreement referenced the agreement between the 1st and 2nd Defendants. Because the 2nd Defendant filed no Defence expressly pleading misjoinder, its claim that it was wrongly joined remained unpleaded and the objection could not dispose of the suit at the preliminary stage.

p. 4
03

The proper nature and scope of a preliminary objection

Holding

A preliminary objection raises a pure point of law on assumed pleaded facts and cannot be raised where facts must be ascertained or discretion exercised

Reasoning

The court adopted the classic definition in Mukhisa Biscuit, reinforced by Avtar Singh Bhamra and IEBC v Jane Cheperenger, that a preliminary objection must stem from the pleadings, constitute a pure point of law, and be capable of disposing of the suit without ascertaining facts or exercising judicial discretion. The improper raising of such points unnecessarily increases costs and confuses issues.

p. 3

Legal principles established

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  • A preliminary objection must arise from the pleadings and be founded on a pure point of law; where facts are undisputed and uncontroverted by a Defence, a defendant cannot raise a preliminary objection unanchored in pleadings.
  • Where a Defendant fails to file a Defence expressly rebutting the Plaintiff's averments, the claim remains unopposed and uncontroverted.

Court orders

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  1. 1.The Notice of Preliminary Objection dated 25 October 2023 is struck out
  2. 2.The Defendants are directed to file and serve their respective Defences within twenty-one (21) days from the date of the ruling
  3. 3.Costs will be in the cause

Authorities

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Legislation

  • Environment and Land Court ActSection 13

Cases cited (19)

  • Owner of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited
    (1989) KLR 1
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    (2012) eKLR
  • Phoenix of EA Assurance Company Limited v S M Thiga t/a Newspaper Service
    (2019) eKLR
  • Kenya Women Finance Trust v Bernard Oyugi Jaoko & 2 Others
    (2018) eKLR
  • Attorney General & Another v Andrew Maina Githinji & Another
    (2016) eKLR
  • Anne Jepkemoi Ngeny v Joseph Tireito & Another
    (2021) eKLR
  • Susan Rokih v Joyce Kandie & 6 Others
    (2018) eKLR
  • Republic Wairimu Munene, ex parte Applicant Ihururu Dairy Farmers Cooperatives Society Ltd
    Judicial Review No. 6 of 2014
  • Cecilia Karuru Ngayu v Barclays Bank of Kenya & Another
    (2016) eKLR
  • Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Avtar Singh Bhamra & Another vs Oriental Commercial Bank
    Kisumu HCCC No. 53 of 2004
  • Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 Others
    Civil Application No. 36 of 2014
  • Machiri Limited v Sogea Satom Kenya Branch
    (2020) eKLR
  • Scope Telematics International Sales Limited v Stoic Company Limited & Another
    (2017) eKLR
  • Safaricom Limited v Ocean View Beach Hotel Limited & 2 Others
    (2010) eKLR
  • Karanja v Phoenix of EA Assurance Co. Ltd
    (1991) eKLR
  • Royal British Bank v Turquand
    (1885) E & B 327
  • Civicon Limited v Fuji Electric Co. Limited & Another
    (2020) eKLR
  • Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 Others
    (2015) eKLR
Jurisdiction invoked
Section 13 of the Environment and Land Court Act (as invoked in argument); first-instance jurisdiction of the Environment and Land Court

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, "Antidote Agencies Limited v Tysons Limited & another (Environment & Land Case E037 of 2023) [2024] KEELC 5563 (KLR)", Case Analysis (2024). Not stated in the judgment as provided (Machakos ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5563/eng@2024-07-29

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