[2016] KEELC 848 (KLR)
The court found that the preliminary objection raised by the defendants did not meet the threshold of a pure point of law as established in Mukisa Biscuits. The grounds advanced by the defendants required the court to consider evidence to determine whether the suit offended the cited statutory provisions or whether...
Source-derived case information.
- Citation
- [2016] KEELC 848 (KLR)
- Parties
- Plaintiff: John Meeme Ngeera; Defendant: Joseph Mwithali Muchiri; Defendant: Peter Mutura Kaberia; Defendant: Janet Nkatha Mururu; Defendant: Amina Sheikh Abdulkadir; Defendant: Khaalif Sheikh Mohammed; Defendant: Christopher Kimathi M'Mwereria
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 291 of 2013
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- FM Njoroge
- Legal Topics
- Preliminary Objection, Land Adjudication, Jurisdiction, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Meeme Ngeera
Plaintiff
Joseph Mwithali Muchiri
Defendant
Peter Mutura Kaberia
Defendant
Janet Nkatha Mururu
Defendant
Amina Sheikh Abdulkadir
Defendant
Khaalif Sheikh Mohammed
Defendant
Christopher Kimathi M'Mwereria
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection raises pure points of law as required by law.
- 2 Whether the plaintiff's suit offends Sections 29(1)(a&b) and 30(1) of the Land Adjudication Act.
- 3 Whether the suit is fatally defective and an abuse of the court process.
Ratio Decidendi
The court found that the preliminary objection raised by the defendants did not meet the threshold of a pure point of law as established in Mukisa Biscuits. The grounds advanced by the defendants required the court to consider evidence to determine whether the suit offended the cited statutory provisions or whether the consent was defective. As such, the issues raised could not be determined at the preliminary stage without delving into factual matters. The court therefore dismissed the preliminary objection for lacking merit.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
E&L CASE NO. 291 OF 2013
JOHN MEEME NGEERA.................................................PLAINTIFF/APPLICANT
VERSUS
JOSEPH MWITHALI MUCHIRI..........................1ST DEFENDANT/RESPONDENT
PETER MUTURA KABERIA...............................2ND DEFENDANT/RESPONDENT
JANET NKATHA MURURU................................3RD DEFENDANT/RESPONDENT
AMINA SHEIKH ABDULKADIR.......................4TH DEFENDANT/RESPONDENT
KHAALIF SHEIKH MOHAMMED ….................5TH DEFENDANT/RESPONDENT
CHRISTOPHER KIMATHI M'MWERERIA........6TH DEFENDANT/RESPONDENT
R U L I N G
This ruling concerns a Notice of Preliminary Objection on a Point of Law dated 23rd May, 2014 and filed by the defendants.
The Preliminary Objection states:-
“TAKE NOTICE that when the Plaintiff's suit and/or application comes for hearing on 29th May, 2014 or at any other given time, the Defendant's Counsel shall raise a Preliminary Objection on points of Law with a view of having the plaintiff's suit and/or application be struck out on grounds that:-
THATthe Plaintiff's suit and/or application offend Section 29(1)(a&b) and Section 30(1) of the Land Adjudication Act CAP 284 Laws of Kenya.
THATthe plaintiff's suit is fatally defective and an abuse of the Court process.
THATthe purported Consent dated 23rd May, 2013 applied in filing this instant suit is defective in its form and nature, hence , an abuse of the Court Process.
Parties elected to have the Preliminary Objection canvased by way of Written Submission. However, despite having been indulged with several chances to so so, the defendants did not file Written Submissions.
In his short Submissions the plaintiff submitted that this Preliminary Objection was not based on pure points of law as its grounds would invite arguments which could only be ascertained through tendering of evidence. He proffered the case of MUKISA BISCUITS CO LTD Versus WEST END DISTRIBUTORS [1969] EA 696. Regarding his assertion that the suit was properly in Court, proffered the case of METHODIST CHURCH OF KENYA REGISTERED TRUSTEES VersusHON. MITHIKA LINTURI & OTHERS , HCCC NO 37 OF 2010 AT MERU.
I do agree with the plaintiff that the Preliminary Objection does not raise pure points of law. On ground 1 , it would be necessary to prove how the suit offends Sections 29(1) (a&b) and Section 30(1) of the Land Adjudication Act. In ground 2, the broad claim that the suit is fatally defective and an abuse of the Court process veritably invites arguments . Ground 3 that the Consent dated 23rd May, 2013 is defective in its form and nature and is an abuse of the Court process is nebulous and invites arguments.
For the above reasons I find that the Preliminary Objection is not meritorious . I dismiss it.
Costs shall be in the cause.
It is so ordered.
Delivered in open Court at Meru this 12th day of April, 2016 in the presence of:-
Daniel /Lilian
Manases Kariuki for Plaintiff
Defendants or their Advocates Absent.
P.M. NJOROGE
JUDGE