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ELCDismissedELC Appeals Nos E014 of 2023 and E016 of 2023 (Consolidated)· [2024] KEELC 6919 (KLR)

Joseph v Kathangichu (Environment and Land Appeal E016 of 2023) [2024] KEELC 6919 (KLR)

Environment and Land Court
16 October 2024
AKA. Kaniaru
1,570 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a preliminary objection meant to end two land appeals, confirming that objections based on disputed facts cannot shortcut a full hearing.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Embu (A. Kaniaru J) determines a preliminary objection dated 8 February 2024 raised by the respondent against two consolidated appeals, ELC Appeal Nos E014 and E016 of 2023. The objection advanced eight grounds: that the appeals were incompetent, fatally defective, and an abuse of process; that E016 of 2023 was filed in the name of a deceased person (James Nyanjui Joseph) and that Purity Njeri Kinyanjui lacked locus standi, having neither pleaded nor participated in the trial and having raised jurisdiction for the first time on appeal; and that E014 of 2023 attacked an order of 25 July 2023 that had been overtaken by the final judgment of 22 August 2023. The respondent relied on Touristick v Jane Mbeyu, Mary Njoki Wachira v John Mboremu Moru and Natural World Mombasa Safaris Ltd v Karuri. The appellants countered that the grounds were not pure points of law, that the deceased-party issue was a mistake curable by amendment (the substitute holding a grant ad litem), and that jurisdiction had been raised in the lower court. The court applied Mukisa Biscuit and Oraro v Mbaja, holding that the objection lacked any specific statutory anchor and turned on contested facts, notably whether the jurisdictional issue had been raised in the trial court. Emphasising the right to be heard on the merits (Peter Ngugi Kabiri and Kutima Investments), the court dismissed the objection with costs in the cause, leaving the consolidated appeals to proceed to a hearing on the merits.

Key legal issues

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01

Definition and validity of a preliminary objection

Holding

The eight-ground objection was not a pure point of law; grounds alleging the appeals were 'defective', 'incompetent', 'bad in law' or a 'non-starter' cited no specific provisions of law and depended on contested facts.

Reasoning

Applying Mukisa Biscuit and Oraro v Mbaja, the court held a preliminary objection must be a pure point of law not blurred by contested facts. The respondent cited no statutory provisions anchoring the alleged defects, and the appellants seriously contested the factual assertions, making the objection unsuitable for preliminary determination.

p. 3
02

Locus standi of Purity Njeri Kinyanjui and filing in the name of a deceased appellant

Holding

Not determined at this stage; the inclusion of a deceased party was a remediable mistake, and the intended substitute holds a grant ad litem, making the issue contested and unfit for a preliminary objection.

Reasoning

The court found the locus standi challenge rested on facts requiring ascertainment and proof - the relationship of Purity to the deceased, the grant ad litem, and possible amendment. Contested factual issues cannot be resolved via preliminary objection.

p. 3
03

Whether the jurisdictional issue was raised in the lower court

Holding

Whether the jurisdiction issue was raised in the trial court is a contested issue and cannot be decided on a preliminary objection.

Reasoning

The respondent argued the jurisdiction issue was raised for the first time on appeal, invoking estoppel; the appellants contended it was raised in the lower court. The court held that since this is a factual contest, it is unsuitable for preliminary determination.

p. 3

Legal principles established

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  • An objection premised on contested factual issues, or lacking a specific statutory anchor, is not a proper preliminary objection and must be dismissed
  • Parties have a fundamental right to be heard on the merits of their case

Court orders

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  1. 1.The preliminary objection dated 8.2.2024 is dismissed
  2. 2.Costs in the cause

Authorities

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Cases cited (7)

  • Touristick and Another vs Jane Mbeyu and Another
    (1993) eKLR
  • Mary Njoki Wachira vs John Mboremu Moru
    (2020) eKLR
  • Natural World Mombasa Safaris Ltd vs Karuri
    Civil Appeal E045 of 2022: (2022) (Ruling)
  • Mukisa Biuscuit Co Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Oraro vs Mbaja
    (2005) KLR 141
  • Peter Ngugi Kabiri vs Esther Wangari Githinji & Another
    (2015) eKLR
  • Kutima Investments Limited vs Muthoni Kihara & Another
    (2015) eKLR
Jurisdiction invoked
First-instance appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts/trial court (ELC Act), invoked on appeals from the trial 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, "Joseph v Kathangichu (Environment and Land Appeal E016 of 2023) [2024] KEELC 6919 (KLR)", Case Analysis (2024). ELC Appeals Nos E014 of 2023 and E016 of 2023 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6919/eng@2024-10-16

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