William Nzuki Munge v David Mutuku Sila & 2 others [2019] KEELC 4998 (KLR)

REPUBLIC OF KENYA IN THE ENVIRONMENT ANDLAND COURT AT MAKUENI ELC CASE NO. 342 OF 2017 WILLIAM NZUKI MUNGE........................PLAINTIFF/RESPONDENT VERSUS DAVID MUTUKU SILA..........................1ST DEFENDANT/APPLICANT THE LAND REGISTRAR.....................2ND DEFENDANT /APPLICANT NATIONAL LAND COMMISSION......3RD DEFENDANT/APPLICANT RULING 1) What is before this court for ruling is the first Defendant’s/Applicant’s notice of preliminary objection dated 06 th March, 2018 and filed in court on even date. In the notice, the first Defendant/Applicant has raised three grounds namely:1. The Plaintiff’s suit is a non-starter. 2. The Plaintiff has no locus standi to present this suit before court and the honourable court ought not to entertain it. 3. The Plaintiff’s suit offends the explicit provisions of the Law of Succession Act and Civil Procedure Act and the Rules made thereunder as the subject matter of this suit is registered in the names of a person who is long deceased namely, MutukuSila and nobody has ever obtained letters of administration or probate to his estate. 2) On the 30th April, 2018 the court directed that the notice of preliminary objection be disposed off by way of written submissions. By the time of writing this ruling, it is only the Plaintiff/Respondent who had complied with the court’s directive. 3) In their submissions, the Counsel for the Plaintiff’s Counsel submitted that the preliminary objection cannot be sustained since the Defendants/Applicants never entered appearance nor did they file their defence and as such, the first Defendant/Applicant has no locus standi to file the same. The Counsel further submitted that the defence is not properly filed taking into account that no leave was ever sought to have the same filed out of time. The Counsel urged the court to expunge the memorandum of appearance and defence and to dismiss the preliminary objection to the Plaintiff/Respondent. 4) In support of their submissions, the Plaintiff’s/Respondent’s Counsel cited the case of Mukisa Biscuit Manufacturing Co.Ltd V West End Distributors Ltd [1969]EA 696 which defines what a preliminary objection is. In the aforementioned case, the court held:- “A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issues. This improper practice should stop.” 5) The counsel also cited the case of Oraro V Mbaja (2005) eKLR where Ojwang, J ( as he then was) held that:- “A preliminary objection correctly understood, is now well identified as, declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects callingfor proof, or seeks to adduce evidence for its authentication, is not a matter of legal principle, a true preliminary objection which the court should allow to proceed.”

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