Itabari v Kenya Electricity Transmission Company Limited

1999, Kenya Commercial Finance Company Limited Vs Afraha Education Society (2001) 1 EA 86 and Nakuru Civil Suit No. 260 of 2004, The Attorney General Vs Kenya Commercial Bank Ltd & 3 Others. 3. The Plainti in his submissions insists that the instant Preliminary Objection is incompetent as it contravenes the trite legal principle that it must only be raised on a pure point of law with a result that if argued, it will dispose of the suit. Further, that the said Notice of Preliminary Objection does not raise pure points of law and the grounds raised therein can only be determined after ascertainment of the sale agreement made between Samuel Kimondo Theuri and himself. He argues that Section 26(1) of the Land Registration Act does not bar him from instituting a suit to protect his purchaser’s interest from the trespassers. Further, the Sale Agreement dated the 6th July, 2021 and his occupation and use of the suit land gives him sucient interest over the said land. He reiterates that he is entitled to claim occupation of the suit land pending registration as absolute proprietor and the issue of locus standi does not arise. To support his averments, he relied on the following decisions: Roman Mutuku Kisini & 2 Others Vs Mary Mwikali Muasya & 3 others (2021) eKLR; Lilian Mosonik & Another Vs Management Committee of AGC Riverside Church (2022) eKLR; Samuel Mwangi Vs Jeremiah M’Itobu (2012) eKLR. The Defendant seeks to have the Plainti’s suit against it struck out on the basis that the Plainti does not have locus standi since he does not have a Certicate of Title in respect to the suit land. The Plainti has opposed the instant Notice of Preliminary Objection and insists that he has proprietary interest over the suit land since he is in possession thereof and had a Sale Agreement with the owner to that eect. 4. 5. The Plainti led this suit vide Plaint dated the October 26, 2022 where he sought for the following orders: i. A declaration that the Plainti is the entitled legal owner of all the Land known as Konza North/Konza North Block 2 (Malili)/3 (formerly Agricultural Plot No. 1923 at Malili Ranch Ltd). ii. A declaration that the Defendant has trespassed onto the Plainti’s parcel of land and caused damages and loss of property. iii. An order of permanent injunction restraining the Defendant, his agents and any other person acting under him from trespassing onto the Plainti’s land. iv. An order directing the Defendant to remove all of the transmission towers/poles with the electric cables from the land known as Konza North/Konza North Block 2 (Malili)/3 (formerly Agricultural Plot No. 1923 at Malili Ranch Ltd). v. General Damages for trespass and mesne prots. vi. And in the alternative and without prejudice to the above prayers, the Plainti seeks Compensatory damages. vii. Costs of this suit. viii. Interests on iii, iv and v. The Defendant though duly served failed to le a Statement of Defence to controvert the Plainti’s averments but instead led the instant Notice of Preliminary Objection. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19945/eng@2023-09-20 2

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In the case of Mukhisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Company Limited (1969) EA 696; the Court held that: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.” 6. While in the case of Avtar Singh Bhamra & Another Vs Oriental Commercial Bank, Kisumu HCCC No.53 of 2004, the Court held that:A Preliminary Objection must stem or germinate from the pleadings led by the parties and must be based on pure points of law with no facts to be ascertained.” Emphasis Mine I note the Plainti has raised the issue of trespass on the suit land which fact the Defendant has not controverted. It is trite that where a Defendant fails to le a Defence expressly rebutting the Plainti’s averments, the claim remains unopposed. However, in this instance, while associating myself with the decisions I have cited, I opine that the issues raised in the Plaint including trespass can only be ascertained during a full hearing. Further, since the Plainti is in occupation of the suit land and has demonstrated how he acquired it, insofar as he is yet to acquire a Certicate of Title, this does not negate his proprietary interest over it. I also note the Plainti at paragraph 4 of the Plaint conrms having bought the land from Samuel Kimondo Theuri and there is no indication that this Sale has been challenged in any forum. 7. In the case of Samuel Mwangi V Jeremiah M’itobu [2012] eKLR, it was held that:There are, therefore, concurrent ndings of facts by the two courts below that the appellant was in lawful occupation of the suit land. These facts are also accepted by the respondent. However, his argument simply is that mere occupation of land does not entitle the appellant to evict another person. That “other” person in this case is neither the owner of the suit land, nor anyone claiming the right to occupation. He is, in fact, the respondent, a trespasser for all intents and purposes. The learned Judge of the High Court erred in his conclusion that only an “owner” of land had the right to sue in trespass. That is clearly not so. As Wineld and Jolowicz state in their book “Tort” (12th Edition @ p. 361): “Possession in fact confers no actual right of property, but a possessor may nevertheless maintain trespass against anyone who interferes who himself cannot show that he has the right to recover possession immediately. A stranger cannot rely in his defence upon another person’s right to possess (the “jus tertii”) unless he can prove that he acted with that person’s authority. Even wrongful possession, such as that acquired by a squatter, will, in principle, be protected except against the owner of the land or someone acting lawfully on his behalf.” 8. See also the case of Lilian Mosonik & Another Vs Management Committee of AGC Riverside Church (2022) eKLR. 9. From the foregoing while associating myself with the decisions cited, I will decline to nd that the Plainti does not have locus standi to institute this suit. In my view, the Defendant should have led a Defence rst to controvert the Plainti’s allegations before lodging the Notice of Preliminary Objection. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19945/eng@2023-09-20 3

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10. In the circumstance, I nd the Notice of Preliminary Objection dated the November 25, 2022 unmerited and will disallow it. I direct the Defendant to le and serve its Statement of Defence within twenty one (21) days from the date hereof. Costs will be in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS THIS 20TH DAY OF SEPTEMBER, 2023 CHRISTINE OCHIENG JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19945/eng@2023-09-20 4

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