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ELCDismissed· [2024] KEELC 6571 (KLR)

Bandari v Muye & 4 others; Ziani Holdings Limited (Interested Party) (Environment & Land Case E105 of 2022) [2024] KEELC 6571 (KLR)

Environment and Land Court
9 October 2024
SKS. M. Kibunja
1,541 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a preliminary objection because it needed evidence, confirming objections must be pure points of law.

What this practically means

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Executive summary

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The plaintiff applied by notice dated 5th October 2022 seeking an injunction restraining the defendants from occupying, alienating or dealing with LR MN/1/16038 – CR.20862 pending determination of the suit. She deposed that she and her late husband were equal shareholders and directors of the interested party which owned the suit property; that the company went through winding up in Mombasa High Court Winding Up Cause No. 5 of 2006; that her late husband fraudulently obtained and later had cancelled a provincial certificate over the property, fraudulently bequeathed it to the defendants by will, and that the defendants had invaded the property and installed tenants. The 1st, 2nd and 4th defendants filed a notice of preliminary objection dated 10th January 2023 on seven grounds, contending that ownership of the property had been conclusively litigated in the winding up cause, that the suit was an abuse of process, and that the application was incompetent for lack of leave and for seeking final orders. The 4th defendant supported the objection with two affidavits. Submissions were never filed despite repeated directions, and neither the parties nor counsel appeared at subsequent mentions. Delivering a reserved ruling on 9th October 2024, the court applied the Mukisa Biscuit test and Oraro v Mbaja, holding that a preliminary objection must be a pure point of law based on undisputed pleaded facts, and that the need for supporting affidavits showed evidence would be necessary. It found all seven grounds failed and rejected the preliminary objection, making no order as to costs since the plaintiff did not participate in the hearing.

Key legal issues

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Whether the seven grounds in the notice of preliminary objection dated 10th January 2023 qualify as pure points of law under the Mukisa Biscuit test

Holding

The preliminary objection fails because none of its grounds arise from undisputed pleadings and evidence would be required to determine them.

Reasoning

Applying Mukisa Biscuit and Oraro v Mbaja, a preliminary objection must rest on undisputed facts in the pleadings and be a pure point of law. The grounds here concerned ownership findings in a winding up cause, matters requiring factual proof. The 4th defendant's filing of two supporting affidavits confirmed evidence would be needed. Such a ground should be prosecuted by application, not preliminary objection.

p. 3

Legal principles established

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  • A preliminary objection must be a pure point of law arising from undisputed pleaded facts; if evidence is required or judicial discretion is sought, the ground ceases to be a true preliminary objection.

Court orders

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  1. 1.The 1st, 2nd, and 4th defendants notice of preliminary objection dated the 10th January 2023 is without merit
  2. 2.The said notice of preliminary objection is hereby rejected with no order as to costs

Authorities

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Cases cited (2)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Oraro v Mbaja
    (2005) 1 KLR 141
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute concerning LR MN/1/16038 – CR.20862

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, "Bandari v Muye & 4 others; Ziani Holdings Limited (Interested Party) (Environment & Land Case E105 of 2022) [2024] KEELC 6571 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6571/eng@2024-10-09

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