[2011] KEHC 1007 (KLR)
The court held that the preliminary objection could not be sustained because the issues raised, particularly the allegations of fraud and the question of indefeasibility of title, require the court to receive and evaluate evidence. A preliminary objection is only appropriate where no evidence is required and the...
Source-derived case information.
- Citation
- [2011] KEHC 1007 (KLR)
- Parties
- Plaintiff: Albert; Defendant: Joel Nyaseme; Defendant: Attorney General
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 99 of 2010
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- HK Chemitei
- Legal Topics
- Limitation of Actions, Indefeasibility of Title, Fraud in Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Albert
Plaintiff
Joel Nyaseme
Defendant
Attorney General
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is barred by limitation under the Limitation of Actions Act and Public Authority Limitation Act.
- 2 Whether the 1st defendant's title is indefeasible under Section 143 of the Registered Land Act.
- 3 Whether allegations of fraud can be determined on a preliminary objection without evidence.
Ratio Decidendi
The court held that the preliminary objection could not be sustained because the issues raised, particularly the allegations of fraud and the question of indefeasibility of title, require the court to receive and evaluate evidence. A preliminary objection is only appropriate where no evidence is required and the point of law is clear and capable of disposing of the suit. Since the plaintiff's claim involves factual disputes regarding the process of registration and alleged fraud, these matters must proceed to trial for proper determination. The court emphasized that summary procedures cannot be used to dispose of cases involving contested facts, especially where fraud is alleged.
Court Disposition
preliminary objection dismissed
Orders
- The 1st defendant's preliminary objection is disallowed.
- The matter shall proceed to full hearing on merits.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CIVIL SUIT NO. 99 OF 2010
ALBERT......................................................................................................PLAINTIFF
VERSUS
JOEL NYASEME.............................................................................1ST DEFENDANT
ATTORNEY GENERAL..................................................................2ND DEFENDANT
RULING
The 1st defendant Preliminary Objection is based on the following grounds namely:-
(I)(a) Sections 7 of the Limitation of Auction Act Chapter 22.
(b)Section 3 (1) of the Public Authority Limitation Act Chapter 39 Laws of Kenya
(II)(a) The 1st defendant being the 1st registered owner of the suit parcel of this title indefeasible and cannot be challenged under the provision of Section 143 of the R. L. A. Chapter 300 laws of Kenya.
I have perused the plaintiff’s plaint dated 9th June 2011 which prays among others for a permanent order of injunction to restrain the
defendants from trespassing on land parcel number KISUMU / KOGONY / 2168. Several issues have been raised in the said plaint and the fundamental prayer therein is an alleged fraud by the defendants.
I have further looked at the 1st defendant’s statement of defence. Apart from denying the issues raised in the plaintiff’s plaint it has further raised fundamental legal grounds which are summarized in the preliminary objection herein.
Preliminary point of law as clearly understand must be such that when the same is applied it must dispose off the issues in the suit without looking further into any other pending issues.There must be no other evidence so required to dispose of the suit. It’s summary in nature.
From the case at hand the same cannot be decided by this summary procedure. The allegations of fraud must be determined by adducing evidence. Whether or not the 1st defendant’s title is indefeasible is a question of evidence. The process in which he found his name in the register is indeed relevant. I have also perused the annextures to the pending plaintiff’s application dated 9th June 2010 and as much as the same is pending, they are pleadings in court records which cannot be avoided.
For the following reasons, therefore I disallow the 1st defendant preliminary objection. I am further alive to Section 159 (2) (d) of the current constitution. This matter ought to proceed to its logical conclusion whatever the outcome.
Costs to the respondent/plaintiff.
Dated, signed and delivered this 2nd day of November 2011.
H. K. CHEMITEI
JUDGE
HKC/aao