[2021] KEELC 4075 (KLR)
The court found that the preliminary objection did not raise a pure point of law as required, since the pleadings did not clearly demonstrate a contravention of section 47 of the Law of Succession Act. The court also determined that the prayers in the plaint sought orders of permanent injunction and cancellation of...
Source-derived case information.
- Citation
- [2021] KEELC 4075 (KLR)
- Parties
- Plaintiff: Getruda Odhiambo Owino; Defendant: Rosa Agutu Rajuli; Defendant: Charles Obonyo; Defendant: Immaculate Nabwire; Defendant: John Odinga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E001 of 2020
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs to the plaintiff
- Judges
- AA Omollo
- Legal Topics
- Jurisdiction of Court, Preliminary Objection, Succession Disputes, Land Title Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Getruda Odhiambo Owino
Plaintiff
Rosa Agutu Rajuli
Defendant
Charles Obonyo
Defendant
Immaculate Nabwire
Defendant
John Odinga
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit contravenes section 47 of the Law of Succession Act.
- 2 Whether the suit should have been filed before the Land Registrar as a trespass claim rather than in court.
- 3 Whether the prayers sought in the plaint amount to a claim for trespass or for injunction and cancellation of title.
Ratio Decidendi
The court found that the preliminary objection did not raise a pure point of law as required, since the pleadings did not clearly demonstrate a contravention of section 47 of the Law of Succession Act. The court also determined that the prayers in the plaint sought orders of permanent injunction and cancellation of titles, not merely a claim for trespass. Therefore, the grounds of the preliminary objection lacked merit and were dismissed.
Court Disposition
preliminary objection dismissed with costs to the plaintiff
Orders
- The preliminary objection dated 29th October 2020 is dismissed.
- Costs of the preliminary objection are awarded to the plaintiff.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT BUSIA
ENVIRONMENT AND LAND CASE NO. E001 OF 2020
GETRUDA ODHIAMBO OWINO.................................PLAINTIFF/APPLICANT
VERSUS
ROSA AGUTU RAJULI....................................1ST DEFENDANT/RESPONDENT
CHARLES OBONYO.......................................2ND DEFENDANT/RESPONDENT
IMMACULATE NABWIRE...........................3RD DEFENDANT/RESPONDENT
JOHN ODINGA................................................4TH DEFENDANT/RESPONDENT
R U L I N G
1. The defence has raised a preliminary objection dated 29th October 2020 stating that;
(a) This suit contravenes the provisions of section 47 of the Law of Succession Act.
(b) The suit contravenes the Land Act which gives the Land Registrar exclusive jurisdiction to entertain trespass disputes.
2. The defendants submit that a certificate of grant was issued in November 2019 setting out mode of distribution and if there is any dispute, the parties ought to resolve the same in the succession file. Secondly that a claim for trespass should be placed before the Land Registrar before filing a case. On her part, the plaintiff submits that the suit herein prays for an order of injunction. That this court has jurisdiction to entertain the claim.
3. A preliminary objection should raise a pure point of law as defined in the case of Mukisa Biscuits Vs West End Distributors Ltd (1969) EA 696 that which does not require to be ascertained by facts. The defendants state that this suit contravenes the provisions of section 47 of cap 160 which provides thus;
“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient: Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.”
4. I have perused the court file and note that the copies of titles filed are in the names of the parties herein. It is not clear from the pleadings how the suit is in breach of provisions of section 47 above. The prayers in the plaint also seeks orders of permanent injunction and cancellation of the suit titles. It is not perse a claim for trespass as stated in the preliminary objection. Consequently, in both grounds of objection, I do not find any merit and I proceed to dismiss the preliminary objection with costs to the plaintiff.
Dated, signed & delivered at BUSIA this 10th day of March, 2021.
A. OMOLLO
JUDGE