[2019] KEELC 3330 (KLR)
The court held that the preliminary objection raised by the 1st defendant was not sustainable because it required the court to assess factual material regarding the identity of the plaintiff. Such factual determinations are not appropriate for resolution at the preliminary objection stage, which is reserved for pure...
Source-derived case information.
- Citation
- [2019] KEELC 3330 (KLR)
- Parties
- Plaintiff: Dr. Angeka Frey; Defendant: The Genya Lucy; Defendant: The Land Registrar Kwale; Defendant: Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 232 of 2017
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection and Notice to Produce
- Outcome
- preliminary objection overruled
- Judges
- CK Yano
- Legal Topics
- Preliminary Objection, Identity of Parties, Burden of Proof, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Angeka Frey
Plaintiff
The Genya Lucy
Defendant
The Land Registrar Kwale
Defendant
Hon. Attorney General
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection and Notice to Produce
Legal Issues
- 1 Whether the preliminary objection raised by the 1st defendant is sustainable in law.
- 2 Whether the court can determine the identity of the plaintiff at the preliminary objection stage.
- 3 Whether the notice to produce was properly served and whether the 1st defendant should be allowed to respond.
Ratio Decidendi
The court held that the preliminary objection raised by the 1st defendant was not sustainable because it required the court to assess factual material regarding the identity of the plaintiff. Such factual determinations are not appropriate for resolution at the preliminary objection stage, which is reserved for pure points of law. The court emphasized that the proper forum for resolving factual disputes is during the substantive hearing or through a formal application. The court also noted that the 1st defendant retains the liberty to pursue the issue of the plaintiff's identity through other means or at a later stage in the proceedings. Additionally, the court found that the notice to...
Court Disposition
preliminary objection overruled
Orders
- The preliminary objection raised by the 1st defendant is overruled.
- The 1st defendant is afforded an opportunity to respond to the notice to produce.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
ELC. NO. 232 OF 2017
DR. ANGEKA FREY…..…………………………..……..…...…PLAINTIFF
VERSUS
THE GENYA LUCY ………………………….………..…1ST DEFENDANT
THE LAND REGISTRAR KWALE…....………………..2ND DEFENDANT
HON. ATTORNEY GENERAL……..………………......3RD DEFENDANT
RULING
1. I have considered the submissions made by both the advocate for the 1st defendant and for the plaintiff. The 1st defendant had raised a preliminary objection to the effect that the person present in court as plaintiff is not the actual plaintiff. In the case of Mukisa Biscuit Manufacturing Co. Ltd –v- West End Distributors Ltd (1969) EA 696 it was held:
“A preliminary objection is in the nature of what used to be demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleased 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.”
2. In this case, the preliminary objection raised by counsel for the 1st defendant requires this court to exercise its discretion and refer the person named as plaintiff and who is before court to be subjected to scrutiny of either the German Embassy or the Ministry of Foreign Affairs or Interpol. The process entails the assessment of the factual materials that have been referred to in the submissions. In my view, such an exercise ought not to be undertaken by the court when determining a preliminary objection as it would entail looking into and assessment of factual material.
3. As to whether or not the person before court is the plaintiff or not is an issue to be determined from the assessment of the factual material. Such an undertaking is more approximately accomplished in the process of determining a substantive application or through the main hearing.
4. In effect, although I have come to the conclusion that the preliminary objection herein is not sustainable, that does not preclude the 1st defendant from re-visiting the issues already raised through an appropriate application or in the course of the hearing. The 1st defendant also has the liberty of ascertaining the correct factual position from other relevant agencies without necessarily an order from the court.
5. For now, the preliminary objection is overruled. As regards the notice to produce, it is my view that the same was filed and served late in the day. The 1st defendant should be afforded an opportunity to respond to the said notice to produce
DATED, SIGNED and DELIVERED at MOMBASA this 3rd day of April 2019.
___________________________
C.K. YANO
JUDGE
IN THE PRESENCE OF:
Maginya for plaintiff
Kimani for 1st defendant
No appearance for 2nd and 3rd defendants.
Yumna Court Assistant
C.K. YANO
JUDGE