[2005] KEHC 2611 (KLR)
The court found that the preliminary objection raised by the defendants did not constitute a pure point of law, as it required the court to determine factual issues regarding the ownership and allocation of the suit land. Since these are matters that can only be established through evidence, the preliminary...
Source-derived case information.
- Citation
- [2005] KEHC 2611 (KLR)
- Parties
- Plaintiff: Dandora Off Kangundo Road Self Help Group; Defendant: Wilfred Oluoch Odalo; Defendant: Peter Ochieng Owno
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 467 of 2005
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- JL Osiemo
- Legal Topics
- Locus Standi, Government Land, Preliminary Objection, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Dandora Off Kangundo Road Self Help Group
Plaintiff
Wilfred Oluoch Odalo
Defendant
Peter Ochieng Owno
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaintiffs have locus standi to sue over the suit land alleged to be government land.
- 2 Whether the preliminary objection raises a pure point of law or issues of fact requiring evidence.
Ratio Decidendi
The court found that the preliminary objection raised by the defendants did not constitute a pure point of law, as it required the court to determine factual issues regarding the ownership and allocation of the suit land. Since these are matters that can only be established through evidence, the preliminary objection was not properly taken. The court therefore dismissed the preliminary objection with costs to the plaintiffs, allowing the substantive suit to proceed to hearing on its merits.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs to the plaintiffs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI Civil Case 467 of 2005
ANDREW ONDINYA OOKO &
3 OTHERS………………………………………………….PLAINTIFFS
VERSUS
WILFRED OLUOCH ODALO &
OTHERS………….………………………………………DEFENDANTS
RULING
The plaintiff DANDORA OFF KANGUNDO ROAD SELF HELP GROUP through their appointed officials brought this suit against the defendants seeking two prayer (a). A permanent injunction restraining the defendants, their servants agents and or employees from entering, trespassing, remaining on, tampering and or encroaching on the parcels of land known asLR NO.18271 and on portions owned by the plaintiffs in LR NO.18276and LR NO.18277 and from interfering with the plaintiffs lawful operations and possession of the subject parcels of land.
(6) A mandatory order compelling PETER OCHIENG OWNO the 2nd defendant to surrender to the plaintiffs official documents relating to the suit land namely (i) Black books used by members in balloting for the allocation of plots on the subject land and two maps showing the allocation of the plots on the subject land.
Simultaneously with the plaint the plaintiff took but a Chamber Summons application under certificate of urgently seeking similar prayers as those in the plaint. When the application came up for hearing Mr. Kabaka counsel for a preliminary objection on a point of law. He submitted that the suit land is Government land and therefore the plaintiffs have no locus standi.
They are strangers on the Government land. The plaintiffs oppose the preliminary objection on the ground that the plaintiffs have averred that they were allocated the land by the ……that ownership of the suit land is not an issue of a point of law but a point of evidence.
A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose off the suit.
A preliminary objection raises a pure point of law which is argued on the assumption that the facts pleaded by the other side are correct.
The preliminary objection raised by the defendants raises points of fact which can only be established through evidence and therefore lacks in merit and the same is dismissed with costs to the plaintiffs.
Dated this 19th day of May 2005.
J.L.A. OSIEMO
JUDGE