[2009] KEHC 756 (KLR)
The court found that the central factual issue—whether the defendants are trespassers or tenants—was disputed and could not be resolved at the preliminary stage. Since the existence of a landlord-tenant relationship was not common ground, the preliminary objection, which relied on the assertion that the defendants...
Source-derived case information.
- Citation
- [2009] KEHC 756 (KLR)
- Parties
- Plaintiff: David Ondimu Kombo; Defendant: Joshua Nyamboki; Defendant: Wilfrida Moraa Bosire; Defendant: Charles Omari; Defendant: Simon Momanyi; Defendant: Daniel Mbula; Defendant: Penina Nyaboke; Defendant: Fredrick Mogere; Defendant: Moses Nyamweya; Defendant: Saloma M. Mekenye; Defendant: Justus Nyakundi Nyasimi; Defendant: Wilsom Miranda; Defendant: Silas O. Ayusa; Defendant: Francis Onyango
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 179 of 2009
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection to Jurisdiction and Competence
- Outcome
- preliminary objection dismissed with costs
- Legal Topics
- Trespass to Land, Landlord Tenant Disputes, Jurisdiction of Courts, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Ondimu Kombo
Plaintiff
Joshua Nyamboki
Defendant
Wilfrida Moraa Bosire
Defendant
Charles Omari
Defendant
Simon Momanyi
Defendant
Daniel Mbula
Defendant
Penina Nyaboke
Defendant
Fredrick Mogere
Defendant
Moses Nyamweya
Defendant
Saloma M. Mekenye
Defendant
Justus Nyakundi Nyasimi
Defendant
Wilsom Miranda
Defendant
Silas O. Ayusa
Defendant
Francis Onyango
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection to Jurisdiction and Competence
Legal Issues
- 1 Whether the suit is incompetent and fatally defective.
- 2 Whether the High Court has jurisdiction to hear and determine the suit given the alleged landlord-tenant relationship.
- 3 Whether the suit constitutes an abuse of the process of the court.
Ratio Decidendi
The court found that the central factual issue—whether the defendants are trespassers or tenants—was disputed and could not be resolved at the preliminary stage. Since the existence of a landlord-tenant relationship was not common ground, the preliminary objection, which relied on the assertion that the defendants were tenants and the court lacked jurisdiction, could not be sustained. The court held that a preliminary objection must be based on uncontested facts and pure points of law. As the facts were disputed, the objection failed. The suit raised triable issues that should proceed to trial for determination on the merits.
Court Disposition
preliminary objection dismissed with costs
Orders
- The preliminary objection is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Civil Suit 179 of 2009
DAVID ONDIMU KOMBO…………………PLAINTIFF/APPLICANT
-VERSUS-
1. JOSHUA NYAMBOKI
2. WILFRIDA MORAA BOSIRE
3. CHARLES OMARI
4. SIMON MOMANYI
5. DANIEL MBULA
6. PENINA NYABOKE
7. FREDRICK MOGERE
8. MOSES NYAMWEYA
9. SALOMA M.MEKENYE
10. JUSTUS NYAKUNDI NYASIMI
11. WILSOM MIRANDA
12. SILAS O. AYUSA
13. FRANCIS ONYANGO…………DEFENDANTS/RESPONDENTS
R U L I N G
The plaintiff is the registered proprietor of the leasehold interest in Kisii Municipality/Block 111/351. He alleged that on or about 1/9/2009 the defendants trespassed upon the land and begun erecting temporary structures thereon and also digging trenches on substantial portion of the plot. The intrusion was without permission or authority, he alleged. The suit was brought for eviction and permanent injunction. Filed along with the suit was an application for temporary injunction under Order 39 rules 1 and 2 of the Civil Procedure Rules, and sections 3A and 63(e) of the Civil Procedure Act and sections 27 and 28 of the Registered Land Act. He obtained an exparteorder. When the application came for interparte hearing it was met with a preliminary objection by the 2 nd, 3rd and 10 th defendants. Their grounds were that:
a) the suit was incompetent and fatally defective.
b) the court lacked jurisdiction to hear and determine the suit; and that ( c) the suit is an abuse of the process of the court.
The 3rd defendant had filed a replying affidavit in which he alleged that all the defendants were tenants of the plaintiff who had allowed them to erect kiosks on the plot for their businesses and for which they were paying rent. Their case is that they were tenants within the meaning of Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap.301), and therefore that if the plaintiff had any grievance against them he should have taken them to the Business Tribunal and not bring them to this court. This is the basis of grounds (a) and (b) of the objection.
Ground (c) can be dealt with quite quickly. The plaintiff is owner of the land and alleges the defendants have without his authority or permission entered thereon in an act of trespass. The suit, on the face, raises an issue that should go to trial as it gives the plaintiff his cause to complain.
The plaintiff is saying the defendants are trespassers on his plot. The defendants are saying they are tenants, legally permitted by the plaintiff to be on the plot. The court will have to hear the parties to be able to decide one way or the other. In other words, it is not common ground that the defendants are tenants of the plaintiff. As was held in the East African Court of Appeal case ofMukisa Biscuit Company Ltd .V. West End Distributors [1969]EA 696,
“……….a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit……………”
Where counsel is relying on facts that are in dispute he cannot raise a preliminary objection. That disposes of grounds (a) and (b).
In short, the objection is not sustained and is dismissed with costs.
Dated, signed and delivered at Kisii this 16th Day of November, 2009.
A.O.MUCHELULE
JUDGE
16/11/2009
16/11/2009
Before A.O.Muchelule-J
Mongare court clerk
Mr. Kaburi for appellant
COURT: Ruling in open court.
A.O.MUCHELULE
JUDGE
16/11/2009