[2016] KEHC 2981 (KLR)
The court held that the issues raised in the Preliminary Objection, specifically regarding the Plaintiff's locus standi and the identity of the deceased, are not pure points of law but factual matters that require evidence and can only be determined at trial. The court found that the Plaintiff holds limited letters...
Source-derived case information.
- Citation
- [2016] KEHC 2981 (KLR)
- Parties
- Plaintiff: Henry Mwakamusha Mokowa; Defendant: Bakari Mwema Mwaro; Defendant: Land Registrar Kilifi
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 207 of 2014
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- OA Angote
- Legal Topics
- Locus Standi, Letters of Administration, Ownership of Land, Preliminary Objection, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Mwakamusha Mokowa
Plaintiff
Bakari Mwema Mwaro
Defendant
Land Registrar Kilifi
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Plaintiff has locus standi to bring the suit on behalf of the estate of Mukoa Kalodzi Ngowa.
- 2 Whether the Preliminary Objection raises pure points of law as required by law.
- 3 Whether the Plaintiff's use of different names for the deceased affects the validity of the suit.
Ratio Decidendi
The court held that the issues raised in the Preliminary Objection, specifically regarding the Plaintiff's locus standi and the identity of the deceased, are not pure points of law but factual matters that require evidence and can only be determined at trial. The court found that the Plaintiff holds limited letters of administration and that the question of whether the names refer to the same person is a factual issue. Therefore, the Preliminary Objection did not meet the threshold established in the Mukisa Biscuit case and was dismissed.
Court Disposition
preliminary objection dismissed
Orders
- The Preliminary Objection dated 12th August, 2015 is dismissed with costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO.207 Of 2014
1. HENRY MWAKAMUSHA MOKOWA..............................................................PLAINTIFF
=VERSUS=
1. BAKARI MWEMA MWARO
2. LAND REGISTRAR KILIFI..........................................................................DEFENDANTS
R U L I N G
1. In the Plaint dated 5th November, 2014, the Plaintiff is seeking for a declaration that the Estate of Mukoa Kalodzi Ngowa is the lawful owner of parcel of land number Kaloleni/Vishakani/529 ( the suit property).
2. In his Preliminary Objection of 12th August, 2015, the 2nd Defendant has averred that the deceased has never been the registered owner of the suit property; that the Plaintiff has not disclosed the steps undertaken to obtain the full grant and that the suit is therefore an abuse of the court process.
3. This Ruling is in respect to the said Preliminary Objection.
4. Although it is the Attorney General on behalf of the 2nd Defendant who filed the Preliminary Objection, it is the 1st Defendant's counsel who filed submissions in support of the same.
5. The 1st Defendant's counsel submitted that although the Plaintiff alleges to be the administrator of the Estate of Joseph Mukowa Kalodzi, the attached limited letters of administration ad litem is in respect to the estate of Mukoa Kalodzi Ngowa; that the Plaintiff has no locus standi to bring this suit on behalf of the late Joseph Mokowa Kalodzi and that the claim by the Plaintiff that the late Joseph Mokowa Kolonzi and Mukoa Kalodzi Ngowa refers to one and the same person is not true.
6. The Plaintiff's advocate submitted that the 2nd Defendant has not raised any pure points of law as contemplated by the case of Mukisa Biscuit Manufacturing Company Limited Vs West End Distributors Limited (1969) EA696.
7. Counsel submitted that what has been raised are facts which can only be ascertained at the hearing.
8. The Plaintiff's case in this matter is that his late father, Joseph Mukowa Kalonzi, was the registered owner of Kaloleni/Vishakani/529.
9. In his Supporting Affidavit sworn on 27th October, 2014 and the Plaint, the Plaintiff has used the names Mukoa Kalodzi Ngowa and Joseph Mokowa Kalonzi interchangeably.
10. Whether Mokoa Kalodzi Ngowa and Joseph Mokowa Kalonzi are one and the same person as portrayed by the Plaintiff's pleadings can only be ascertained after trial.
11. Although the Defendants have averred that the Plaintiff does not have the locus standi to bring this suit for want of letters of administration, it is the 1st Defendant who took out citation against the Plaintiff in citation No. 10 of 2012. That is the citation that the Plaintiff is relying on to bring the present proceedings challenging the vesting orders that were issued in the citation case.
12. In any event, the Plaintiff is in possession of limited letters of administration dated 2nd October, 2014 allowing him to collect and preserve the assets of Mukoa Kalodzi Nogwa.
13. The question as to whether the citation by the 1st Respondent in Citation Cause No. 10 of 2012 can enable the Plaintiff to pursue the present claim together with the limited letters of administration can only be dealt with conclusively after the court considers the two matters.
14. For the above reasons, I find that the issues that have been raised by the Defendants in the Preliminary Objection dated 12th August, 2015 are not purely points of law as contemplated in the Mukisa Biscuit's case.
15. The Preliminary Objection dated 12th August, 2015 is therefore dismissed with costs.
Dated, signed and delivered in Malindi this 14thday of September, 2016.
O. A. Angote
Judge