[2017] KEELC 2112 (KLR)
The court found that the preliminary objection raised by the defendant was identical to that raised in ELC No. 53/2017, which had already been dismissed for failing to meet the criteria of a proper preliminary objection. The objection did not raise a pure point of law and required the court to ascertain facts, which...
Source-derived case information.
- Citation
- [2017] KEELC 2112 (KLR)
- Parties
- Plaintiff: John Kiprono Keter; Defendant: Maurice Ogero Nyakundi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 54 of 2017
- Procedural Posture
- Land Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection struck out; suit to proceed on merits
- Judges
- FM Njoroge
- Legal Topics
- Preliminary Objection, Land Subdivision, Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kiprono Keter
Plaintiff
Maurice Ogero Nyakundi
Defendant
Procedural Posture
Land Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection raised by the defendant meets the threshold of a proper preliminary objection.
- 2 Whether the preliminary objection should be sustained or struck out.
Ratio Decidendi
The court found that the preliminary objection raised by the defendant was identical to that raised in ELC No. 53/2017, which had already been dismissed for failing to meet the criteria of a proper preliminary objection. The objection did not raise a pure point of law and required the court to ascertain facts, which is outside the scope of a preliminary objection. Consequently, the court held that the objection could not be sustained and struck it out, allowing the substantive application to proceed to hearing on its merits.
Court Disposition
preliminary objection struck out; suit to proceed on merits
Orders
- The preliminary objection is hereby struck out.
- The Notice of Motion dated 16/3/2017 shall proceed to hearing on its merits.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 54 OF 2017
JOHN KIPRONO KETER…………………………….PLAINTIFF
VERSUS
MAURICE OGERO NYAKUNDI………………........DEFENDANT
R U L I N G
1. The suit herein was commenced by way of plaint dated 16/3/2017 on 17/3/2017. By the order of this court dated 13/7/2017 in this matter this court ordered that the ruling in this case and in ELC No. 53/2017 would be delivered together. The preliminary objection in that suit, which is similar to the one herein, was argued on the same day as the instant objection.
2. I have already dismissed the preliminary objection in ELC No. 53/2017 on the basis that the same does not fit the proper description of a preliminary objection.
3. The preliminary objection raised here is on exactly the same terms as that one raised in ELC No. 53/2017for understandable reasons: The subdivision process in respect of parcel no 309 which gave birth to parcel No. 352 which is the subject matter of ELC No. 53/2017is the same one that gave rise to parcel No 353. This preliminary objection cannot be sustained for the same reasons as those that I gave in ELC No. 53/2017.
4. Accordingly, the preliminary objection is hereby struck out. The Notice of Motion dated 16/3/2017 shall proceed to hearing on its merits. There shall be no orders as to costs.
Dated, signed and delivered at Kitale on this 31stday of July, 2017.
MWANGI NJOROGE
JUDGE
Ruling read in open court in the absence of the parties who had been notified of the date but failed to turn up.
Court Assistant – Isabellah.
MWANGI NJOROGE
JUDGE
31/07/2017.