[2021] KEELC 2440 (KLR)
The court held that the issues raised in the preliminary objection, specifically whether the suit is statute barred and whether it qualifies as a suit for adverse possession, are matters that require the court to consider evidence and ascertain facts. Since a preliminary objection must be confined to pure points of...
Source-derived case information.
- Citation
- [2021] KEELC 2440 (KLR)
- Parties
- Applicant: James Atsenga Maliachi; Respondent: Zablon Anzimbo Nangoli
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 63 of 2019
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled
- Judges
- NA Matheka
- Legal Topics
- Adverse Possession, Limitation of Actions, Preliminary Objection, Sale of Land Agreements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Atsenga Maliachi
Applicant
Zablon Anzimbo Nangoli
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is statute barred under Sections 4(a), 7 and 13(1) of the Limitation of Actions Act Cap 22 due to being based on an agreement for sale of land dated 18th August, 2003.
- 2 Whether a suit based on an alleged land sale agreement qualifies for adverse possession under Order 37 Rule 7 (1) & (2).
Ratio Decidendi
The court held that the issues raised in the preliminary objection, specifically whether the suit is statute barred and whether it qualifies as a suit for adverse possession, are matters that require the court to consider evidence and ascertain facts. Since a preliminary objection must be confined to pure points of law and cannot be determined where factual issues are in dispute or require proof, the objection was not properly taken. The court found that the applicant's claim for adverse possession is a matter for full hearing and cannot be dismissed at the preliminary stage based on the arguments advanced by the respondent. Accordingly, the preliminary objection was overruled with costs...
Court Disposition
preliminary objection overruled
Orders
- The preliminary objection is overruled with costs to the applicant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAKAMEGA
ELC CASE NO. 63 OF 2019
JAMES ATSENGA MALIACHI....................................................APPLICANT
VERSUS
ZABLON ANZIMBO NANGOLI.............................................RESPONDENT
RULING
The respondent herein raised a Preliminary Objection on point of law in opposition of the entire suit on the following grounds:-
1. That the suit is statute barred as it has been filed in contrast to the mandatory provisions of Sections 4 (a), 7 and 13 (1) of the Limitation of Actions Act Cap 22 for the reason that the same is based on a claim for land based on an alleged agreement for sale of land dated 18th August, 2003.
2. That the suit being based on an alleged land sale agreement does not qualify for a suit for adverse possession under order 37 rule 7 (1) & (2).
This court has considered the preliminary objection and the submissions herein. A Preliminary Objection, as stated in the case of Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd (1969) E.A 696,
“……… 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”
In the same case, Sir Charles Newbold said:
“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion”.
J.B. Ojwang, J (as he then was) in the case of Oraro vs. Mbajja (2005) e KLR had the following to state regarding a ‘Preliminary Objection’.
“I think the principle is abundantly clear. A “preliminary objection”, correctly understood is now well identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. I am in agreement …….. that, “where a court needs to investigate facts, a matter cannot be raised as a preliminary point.”.
On perusal of the pleadings in this case the applicant prayed for adverse possession. The issue as to whether the suit is statute barred as it has been filed in contrast to the mandatory provisions of Sections 4 (a), 7 and 13 (1) of the Limitation of Actions Act Cap 22 for the reason that the same is based on a claim for land based on an alleged agreement for sale of land dated 18th August, 2003 or that the suit being based on an alleged land sale agreement does not qualify for a suit for adverse possession under order 37 rule 7 (1) & (2) is a matter of evidence which cannot be determined at this preliminary stage. Indeed the applicant in their submissions maintain this is a suit of adverse possession. I find the preliminary objection is not merited and I overrule the same with costs to the applicant.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 27TH JULY 2021.
N.A. MATHEKA
JUDGE