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ELCAllowedNot stated in judgment· [2024] KEELC 7246 (KLR)

Hussein v Elema & 8 others (Environment and Land Appeal E029 of 2023) [2024] KEELC 7246 (KLR)

High Court of Kenya
30 October 2024
2,609 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is the High Court at Meru (C K Nzili, J) allowing a first appeal against a ruling of the trial magistrates' court delivered on 4.9.2023, which upheld a preliminary objection by the 9th respondent (the Hon. Attorney General) and struck out the appellant's trespass suit over Parcels Nos. 15550 and 15647 Ngaremara/Gambela Adjudication Section, with costs of Kshs.66,300/=. The Attorney General had been joined only as an interested party by a ruling dated 15.5.2023, which declined a stay of proceedings under Section 30 of the Land Adjudication Act. Despite that, the 9th respondent, without leave, filed a memorandum of appearance as 9th defendant, a defence, an unverified counterclaim and a preliminary objection asserting lack of jurisdiction. The High Court held that the joinder order was never varied; an interested party cannot recharacterise itself as a defendant or alter the suit, citing Francis Muruatetu and Bajaber Limited. The preliminary objection was held not to be a pure point of law, since it depended on disputed facts about the adjudication status of the land which the 9th respondent never pleaded or proved with documents from the designated adjudication officers. The 9th respondent's pleadings were declared improperly filed and a nullity, and the costs and orders granted to it were found improperly granted. The appeal was allowed, the striking-out order set aside, the suit reinstated for hearing before a judicial officer other than Hon. R. Ongira (SRM), with costs of the appeal to the appellant.

Key legal issues

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01

Whether the 9th respondent, joined as an interested party, could recharacterise itself as a defendant and file a defence, counterclaim and preliminary objection

Holding

No. The leave granted was for joinder as an interested party only; filing a defence and counterclaim as 9th defendant without leave or amendment of the plaint was an abuse of process and a nullity.

Reasoning

The ruling of 15.5.2023 allowed the Attorney General in as an interested party only. The plaint was never amended to plead anything against the 9th respondent as a defendant, and the trial court made no order permitting such pleadings. An interested party cannot dictate or change the suit; its pleadings answering unpleaded issues were improperly on file, and orders and costs granted in its favour were improperly granted.

p. 4
02

Whether the preliminary objection under Section 30 of the Land Adjudication Act was a pure point of law

Holding

It was not; it required evidence as to whether the suit land was under an ongoing adjudication process and whether consent to sue was a condition precedent, and it was unsupported by any pleadings or documents from the 9th respondent.

Reasoning

The preliminary objection was based on the assertion that the suit land fell within an adjudication section and that consent to sue was required under Section 30 of the Land Adjudication Act. The 9th respondent produced no verifying affidavit, witness statement or document from the land adjudication officer establishing the status of the adjudication. Facts so disputed cannot found a preliminary objection; hence the objection should have failed.

p. 5
03

Whether the trial court infringed the appellant's right to a fair hearing

Holding

Yes - the striking out of the suit on an improperly founded preliminary objection, supported by pleadings that were a nullity, condemned the appellant on a defective basis.

Reasoning

The appellant had filed a replying affidavit with letters showing the adjudication over his parcels was complete; these were unchallenged by rival pleadings, documents or reports from the designated adjudication officers. The trial court failed to see that the counterclaim lacked a verifying affidavit and that the supporting affidavit was sworn by a state counsel, not a land adjudication officer. Allowing the objection on such a footing denied the appellant a fair hearing.

p. 5

Legal principles established

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  • An interested party cannot step in and dictate or change the suit or claim; it must remain within the capacity in which leave to join was granted.
  • A preliminary objection must be a pure point of law based on undisputed facts and cannot be founded on facts requiring evidential proof.
  • Pleadings filed without leave in a capacity different from that granted are a nullity, and orders or costs flowing from them are improperly granted.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The lower court order dismissing the suit is set aside and/or vacated
  3. 3.The suit is reinstated for hearing by another judicial officer apart from Hon. R. Ongira (SRM)
  4. 4.Costs of the appeal to the appellant

Authorities

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Legislation

  • Land Adjudication ActSection 30
  • Land Adjudication ActSection 28
  • Land Adjudication ActSections 24 & 25
  • Constitution of KenyaArticle 156(6)

Cases cited (8)

  • Muthara Njuri Ncheke Council of Elders and another vs Committee of Ngaremara Gambela Adjudication Section and others
    (2019) eKLR
  • Francis Muruatetu vs Republic
    (2017) eKLR
  • Gladys Nduku Njoki vs Letshego (K) Ltd
    (2022) eKLR
  • Civicon Ltd vs Kivuwatt Ltd & others
    (2015) eKLR
  • Bajaber Limited vs Kenya Revenue Authority
    (2021) eKLR
  • Luka Kiplelei Kotut vs Joseph Chebii & Another
    (2013) eKLR
  • Marigat Group Ranch & 3 others vs Wesley Chepkoiment & 19 others
    [2014] eKLR
  • Oraro vs Mbaja
    [2005] eKLR
On appeal from
Magistrates' court (trial court, Meru area)
Not stated in judgment
Jurisdiction invoked
First appeal from the magistrates' court under the civil procedure framework (specific provision not stated in judgment)

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, "Hussein v Elema & 8 others (Environment and Land Appeal E029 of 2023) [2024] KEELC 7246 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7246/eng@2024-10-30

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