[2012] KEHC 1396 (KLR)
The court found that the preliminary objection raised by the defendant was not properly before the court because its determination would require the ascertainment of facts, specifically regarding the award made by the Aldai Land Disputes Tribunal. The court held that a proper preliminary objection must be based on a...
Source-derived case information.
- Citation
- [2012] KEHC 1396 (KLR)
- Parties
- Plaintiff: John Kipkeino Kichwen; Defendant: Samwel Kipkeny Rop
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 164 of 2010
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled with costs to the plaintiff
- Legal Topics
- Preliminary Objection, Joinder of Parties, Injunctions, Land Disputes Tribunal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kipkeino Kichwen
Plaintiff
Samwel Kipkeny Rop
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection raised by the defendant is properly before the court.
- 2 Whether the non-joinder of the Aldai Land Disputes Tribunal is fatal to the plaintiff's claim for injunction.
- 3 Whether the prayer for injunction can stand in the absence of the Land Disputes Tribunal as a party.
Ratio Decidendi
The court found that the preliminary objection raised by the defendant was not properly before the court because its determination would require the ascertainment of facts, specifically regarding the award made by the Aldai Land Disputes Tribunal. The court held that a proper preliminary objection must be based on a pure point of law and not on disputed facts. Since the plaintiff did not seek any adverse orders against the tribunal and the objection required factual determination, the preliminary objection was overruled.
Court Disposition
preliminary objection overruled with costs to the plaintiff
Orders
- The preliminary objection is overruled with costs to the plaintiff.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
High Court at Eldoret
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JOHN KIPKEINO KICHWEN.................................................................PLAINTIFF
VERSUS
SAMWEL KIPKENY ROP....................................................................DEFENDANT
RULING
On 1st December, 2011 S.K. Kitur and Company Advocates for the defendant filed a Notice for Preliminary Objection to the effect that the prayer for injunction sought in prayer 9(a) of the plaint cannot issue because Aldai Land Disputes Tribunal, whose award is being challenged, has not been joined to this suit. In their written submissions the said advocates contend that if the plaintiff was not satisfied with the award of the said tribunal, he should either have appealed to the provincial appeals committee or sought judicial review of the same. In the premises the prayer for injunction cannot stand in the absence of the Land Disputes Tribunal as a party to this suit.
The preliminary objection is opposed on the grounds that it is an attempt to limit the court's jurisdiction and further that no adverse order is sought against the said tribunal and the non-joinder is therefore not fatal. Besides, according to counsel for the plaintiff, the preliminary objection is not a proper preliminary objection because facts have to be obtained.
I have considered the notice of preliminary objection and the rival submissions of counsel. Having done so, I take the following view of the matter. The predecessor of our present Court of Appeal said as follows in Mukisa Biscuit Manufacturing Company Limited -Vs- West End Distributors Limited [1969] E.A. 696:
“A preliminary objection is in the nature ofwhat 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 facthas to be ascertained or if what is sought is the exercise of judicial discretion.”
A perusal of the plaint shows that the plaintiff does not seek any adverse orders against Aldai Land Disputes Tribunal even though its award is being challenged. I also observe that a determination of the point raised in the preliminary objection would involve a consideration of the award made by the said Land Disputes Tribunal which in reality means that facts have to be ascertained. In the premises I agree with counsel for the plaintiff that the preliminary objection has not been properly raised. The same is overhauled with costs.
It is so ordered.
DATED AND DELIVERED AT ELDORET
THIS 5TH DAY OF SEPTEMBER, 2012
F. AZANGALALA
JUDGE
Read in the presence of:
Mr. Choge for the plaintiff
F. AZANGALALA
JUDGE
5TH SEPTEMBER, 2012