Antidote Agencies Limited v Tysons Limited & another (Environment & Land Case E037 of 2023) [2024] KEELC 5563 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Environment and Land Court has jurisdiction over a claim founded on an Agency Agreement relating to marketing services and commissions over land
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
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.
Whether the 2nd Defendant was properly joined in the suit
The misjoinder contention could not succeed on a preliminary objection absent a Defence pleading it
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.
The proper nature and scope of a preliminary objection
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
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.
Legal principles established
#- 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
#- 1.The Notice of Preliminary Objection dated 25 October 2023 is struck out
- 2.The Defendants are directed to file and serve their respective Defences within twenty-one (21) days from the date of the ruling
- 3.Costs will be in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.