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ELCAllowedMemorandum of Appeal dated 3.6.2022 (arising from Tigania PMC ELC No. 53 of 2019 consolidated with No. 67 of 2019)· [2024] KEELC 6598 (KLR)

Mwirabua v Murungi (Environment & Land Case E028 of 2022) [2024] KEELC 6598 (KLR)

Environment and Land Court
2 October 2024
2,894 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 ruled land trespass suits belong in regular courts, reinstating two cases wrongly struck out over land adjudication objections.

What this practically means

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Executive summary

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The appellant, plaintiff in Tigania PMC ELC No. 67 of 2019, sued the respondent for trespass over Parcel No. 5294 Karama Adjudication Section, excised from his father's parcel No. 615, seeking permanent injunction and eviction. The respondent had separately sued the appellant in Suit No. 53 of 2019 for trespass over Parcel No. 10331. The files were consolidated with No. 53 of 2019 as the operative file. On a preliminary objection by the respondent, the trial court ruled on 26.1.2021 that it lacked jurisdiction because the parties had not exhausted internal dispute resolution mechanisms under the Land Adjudication Act (Cap 284) and Land Consolidation Act (Cap 283), and struck out Suit No. 67 of 2019. Subsequent applications for review by the appellant were struck out for improper representation and, later, review was declined. On appeal, the ELC at Meru (C K Nzili, J) framed the single question as whether the trial court had jurisdiction. The court held that on the pleadings neither party was challenging adjudication decisions; each sought enforcement of interests in trespass, which falls within regular courts' jurisdiction since adjudication bodies cannot grant injunctions or eviction orders. The jurisdictional objection required investigation of contested facts about the two parcels and was therefore not a pure point of law under Mukisa Biscuits, and a preliminary objection should not be used as a sword. Allowing the appeal, the court set aside the rulings of 26.1.2021 and 5.2.2022 and directed that both suits be heard on the merits by a magistrate other than P.M Wechuli S.R.M., with costs to the appellant.

Key legal issues

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01

Jurisdiction of the trial court over suits concerning land under adjudication

Holding

On the pleadings, the parties were not challenging decisions of the land adjudication bodies but seeking enforcement for trespass; the jurisdictional objection required investigation of contested facts and was not a pure point of law, so the trial court erred in striking out the suits for want of jurisdiction.

Reasoning

Both parties held consents to sue and pleaded trespass over two distinct parcels. Neither party was challenging the adjudication bodies' decisions, so the ouster provisions in Sections 30 of Cap 284 and 26 of Cap 283 did not apply on the pleadings. The dispute required evidence on the status, size and locality of the two parcels, which the parties contested, meaning the objection was not a pure point of law and ought not to have disposed of the suits summarily.

p. 5
02

Nature of a preliminary objection

Holding

A preliminary objection must be a pure point of law pleaded or arising by clear implication from the pleadings; it should not depend on factual material and should not be used as a sword.

Reasoning

Applying Mukisa Biscuits, the court found the objection here relied on factual materials rather than law. Following IEBC v Jane Chepngerer, a proper preliminary objection serves as a shield sparing judicial time, not a device to win a case destined for resolution on the merits. Since the respondent himself had a separate consolidated suit, raising the objection risked striking down his own claim too.

p. 4
03

Review of the striking-out order

Holding

The appellant was entitled to seek review of the striking-out orders on errors apparent on the face of the record, and the trial court erred in declining review.

Reasoning

Given that the jurisdictional objection was not a pure point of law and the trial court needed to investigate facts about the origin and status of the two parcels and the adjudication process, the striking-out orders rested on an error apparent on the face of the record. The appellate court therefore allowed the appeal and set aside both rulings, directing the suits be heard on merit by a magistrate other than Wechuli S.R.M.

p. 5

Legal principles established

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  • Jurisdiction is fundamental and must be determined preliminarily once raised; without jurisdiction a court must down its tools.
  • A preliminary objection must be a pure point of law; where it depends on contested facts or evidence, it is not a proper preliminary objection.
  • A preliminary objection should serve as a shield, not a sword to win a case otherwise destined to be resolved on the merits.
  • Trespass claims fall under the jurisdiction of regular courts; adjudication bodies cannot issue and enforce injunctions or eviction orders.

Court orders

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  1. 1.Appeal allowed
  2. 2.Rulings made on 26.1.2021 and 5.2.2022 set aside
  3. 3.The two suits to be heard on merits by the trial court other than P.M Wechuli S.R.M.
  4. 4.Costs to the appellant

Authorities

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Legislation

  • Land Consolidation ActSection 26(3) and Section 26
  • Land Adjudication Act (Cap 284)Sections 8, 29(1), 30 and 30(1)(2)
  • Civil Procedure RulesOrder 42 Rule 16, Order 9 Rule 9
  • Civil Procedure ActSection 78
  • Constitution of KenyaArticle 47
  • Fair Administrative Action Act

Cases cited (13)

  • Nicholas Mugambi & another (suing as the legal representative of the estate of Peter Etharia M'Kailibi) & others vs Zakary Baariu & others
    (2018) eKLR
  • Gitobu Imanyara & others vs AG
    (2016) eKLR
  • Selle & another vs Associated Motor Boat Co. Ltd & others
    (1968) E.A 123
  • Owners of Motor Vessel Lillian "S" vs Caltex (K) Ltd
    (1989) KLR 1
  • Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) E.A 696
  • Tobias Achola Osidi and others vs Cyprianus Ogalo & 7 others
    (2013) eKLR
  • Stephen Kungutia & others vs Severian Nchulubi
    Nyeri Civil Appeal No. 221 of 2010
  • Amaranth (suing on behalf of the estate of the late Amarnath Gupta vs Kazungu & others
    Civil Appeal E033 of 2022 (2023) KECA 1280 (KLR) (27th October 2023)
  • Julia Kaburia vs Kabeera & others
    (2007) eKLR
  • Raila Odinga & others vs Independent Electoral and Boundaries Commission & others
    (2017) eKLR
  • Kimani & others vs Kenya Revenue Authority & others
    (2021) KESC 43 (KLR) (16th July 2021)
  • IEBC vs Jane Chepngerer and others
    (2015) eKLR
  • Oraro vs Mbaja
    (2005) eKLR
On appeal from
Tigania Principal Magistrate's Court
ELC No. 53 of 2019 (consolidated with No. 67 of 2019)
Jurisdiction invoked
Order 42 of the Civil Procedure Rules as read with Section 78 of the Civil Procedure Act (first appeal)

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, "Mwirabua v Murungi (Environment & Land Case E028 of 2022) [2024] KEELC 6598 (KLR)", Case Analysis (2024). Memorandum of Appeal dated 3.6.2022 (arising from Tigania PMC ELC No. 53 of 2019 consolidated with No. 67 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6598/eng@2024-10-02

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