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ELCDismissedNot stated in the judgment (Embu ELC suit filed 21.07.2023)· [2024] KEELC 5949 (KLR)

Ngure & 5 others v Mugo (Sued in her Capacity as the Personal Representative of the Estate of Jeremiah Ngiri (Deceased) & 2 others (Environment & Land Case 002B of 2023) [2024] KEELC 5949 (KLR)

Environment and Land Court
30 April 2024
AKA. Kaniaru
2,342 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Embu Land Court dismissed land defendants' shortcut attempt, ruling that arguments based on disputed facts must go to a full hearing, not a preliminary objection.

What this practically means

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Executive summary

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This ruling by A. Kaniaru J of the Environment and Land Court at Embu, delivered on 30 April 2024, determines a six-ground preliminary objection dated 20.09.2023 raised by the defendants. They argued that the plaintiffs' suit and notice of motion offended section 29 of the Land Adjudication Act (Cap 284) by challenging the Minister's final decision in Minister's appeal no. 117 of 2000; that the claim was time-barred under section 7 of the Limitation of Actions Act; that the suit was res judicata in view of Embu H.C JR No. 40 of 2011 and ELC JR App No. 1 of 2021; that the 2nd to 6th plaintiffs lacked locus standi having not shown they were legal representatives of their deceased fathers; and that the suit was incompetent and an abuse of process and should be struck out with costs. The plaintiffs, through a replying affidavit of Kirangi Ngure and written submissions, countered that the claim was founded on constructive trust, not adverse possession or an appeal from the Minister, that the prior judicial review proceedings involved different parties and issues and were dismissed on technicality, and that the objection rested on disputed facts. Applying Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd and related authority, the court held that the objection was mixed up with factual issues requiring evidence to be ascertained and did not stem purely from undisputed facts on the pleadings. The preliminary objection was dismissed with costs in the cause.

Key legal issues

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Whether the preliminary objection dated 20.09.2023 satisfies the threshold of a proper preliminary objection

Holding

It does not; it is premised on disputed facts requiring evidentiary probing and therefore fails

Reasoning

The court reviewed Mukisa Biscuits and subsequent authority establishing that a preliminary objection must be a pure point of law argued on the assumption that the other side's pleaded facts are correct, must originate from the pleadings, and must not depend on facts to be ascertained or on the exercise of discretion. Determining whether the suit offended section 29 of the Land Adjudication Act, limitation, res judicata and locus standi would require combing through evidence, taking it beyond the proper scope of a preliminary objection.

p. 5

Legal principles established

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  • A preliminary objection must raise a pure point of law on assumed facts and cannot be raised where facts must be ascertained or discretion exercised
  • A preliminary objection must stem from the pleadings and not deal with disputed facts

Court orders

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  1. 1.The preliminary objection dated 20.09.2023 is dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Land Adjudication Actsection 29
  • Limitation of Actions Actsection 7
  • Civil Procedure Actsection 7
  • Law Reform Actsection 2(1)

Cases cited (11)

  • Watuku Mutsiemi Watuku & Anor v Republic & 5 Others
    (2018) eKLR
  • Joseph Muriuki Kithinji v Peterson Ireri Mwaniki & 3 others
    (2021) eKLR
  • Gathoni v Kenya Cooperative Creameries Ltd
    (1982) eKLR
  • CK Bett Traders Ltd & 2 others v Kennedy Mwangi & Anor
    (2021) eKLR
  • Independent Electoral and Boundaries Commission v Maina Kiai & 5 others
    (2017) eKLR
  • Alfred Njau and Others vs City Council of Nairobi
    (1982) KAR 229
  • Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd
    (1969) EA 696
  • Dickson Esho v Suyianka Mayune & 2 others
    [2022] eKLR
  • Quick Enterprises Ltd Vs Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
  • Avtar Singh Bhamra & Another Vs Oriental Commercial Bank
    Kisumu HCCC No.53 of 2004
  • Oraro Vs Mbaja
    (2005) 1 KLR 141
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land

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, "Ngure & 5 others v Mugo (Sued in her Capacity as the Personal Representative of the Estate of Jeremiah Ngiri (Deceased) & 2 others (Environment & Land Case 002B of 2023) [2024] KEELC 5949 (KLR)", Case Analysis (2024). Not stated in the judgment (Embu ELC suit filed 21.07.2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5949/eng@2024-04-30

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