[2020] KEELC 3089 (KLR)
The court found that the preliminary objection raised by the defendant did not meet the threshold established in Mukisa Biscuits Distributors Limited Vs West End Limited, as the issues of capacity and res judicata required the court to consider evidence and ascertain facts, which is not permissible at the...
Source-derived case information.
- Citation
- [2020] KEELC 3089 (KLR)
- Parties
- Plaintiff: Joseph Wanyama Ojiambo; Defendant: Justus Ouma Webuye (Being sued as personal representative of Linus Webuye, Deceased)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Case 30 of 2017
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs
- Judges
- AA Omollo
- Legal Topics
- Preliminary Objection, Capacity to Sue, Letters of Administration, Res Judicata, Ownership of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Wanyama Ojiambo
Plaintiff
Justus Ouma Webuye (Being sued as personal representative of Linus Webuye, Deceased)
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the defendant has capacity to be sued as personal representative of the deceased without letters of administration.
- 2 Whether the plaintiff has a cause of action against the defendant.
- 3 Whether the matter is res judicata due to prior determination in Busia High Court P & A No. 11 of 2001.
Ratio Decidendi
The court found that the preliminary objection raised by the defendant did not meet the threshold established in Mukisa Biscuits Distributors Limited Vs West End Limited, as the issues of capacity and res judicata required the court to consider evidence and ascertain facts, which is not permissible at the preliminary objection stage. The court noted that the existence and effect of the letters of administration and the determination in the prior succession cause were matters that could only be resolved after hearing both parties and reviewing the relevant documents. Consequently, the preliminary objection was dismissed as unmerited.
Court Disposition
preliminary objection dismissed with costs
Orders
- The preliminary objection is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT BUSIA
CIVIL CASE NO. 30 OF 2017
JOSEPH WANYAMA OJIAMBO ………………..….….…..…… PLAINTIFF
VERSUS
JUSTUS OUMA WEBUYE(Being sued as personal representatives of
LINUS WEBUYE (Deceased)……………...………..…………..… DEFENDANT
R U L I N G
1. The defendants raised a Preliminary Objection to the hearing of this matter on the following grounds;
1) The defendant lacks capacity to be sued on behalf of Linus Webuye – deceased.
2) That plaintiff has no cause of action against the defendant.
2. In his submission, the defendant stated that Linus Webuye – deceased is the registered owner of L.R No. Bukhayo/Matayos/2080. The defendant states that he has not taken out letters of administration of his deceased father’s estate. The defendant is sued as the personal representative of Linus Webuye-deceased.
3. In contesting the Preliminary Objection, the plaintiff stated that the defendant was granted letters of administration in Succession Cause No. 11 of 2001 on 30/11/2016 which grant was initially issued to the plaintiff before the same was revoked.
4. In his defence at paragraph 9, the defendant pleaded thus;
“The defendant avers that there has been a dispute between the plaintiff and the defendant in Busia High Court P & A No. 11 of 2001, which matter was determined in favour of the defendant hence this suit is res judicata.”
5. In the case of Mukisa Biscuits Distributors Limited Vs West End Limited (1969) eKLR the Court held that a preliminary point of law qualifies as such if it can be determined without requiring the adduction of evidence/facts to prove its existence. The defendant admits the existence of BSA H.C. P & A No. 11 of 2001 which he says was determined in his favour. There is need for evidence to be placed before this Court to show the nature of the determination that was made in favour of the defendant as the determination was not annexed to the pleadings on record.
6. The plaintiff has submitted that the grant was initially issued to him but was later revoked and issued to the defendant on 30th November 2016. The question on which set of facts this Court should believe can only happen after hearing both parties based on documents they present. This makes the Preliminary Objection raised to fall below the threshold set in the Mukisa Biscuit Case supra.
7. The second limb of the objection also requires evidence to be adduced. I need not say more on it. In summary, I find the Preliminary Objection raised is unmerited and I proceed to dismiss it with costs.
Dated, signed and delivered at BUSIA this 15th day of April, 2020.
A. OMOLLO
JUDGE