[2010] KEHC 2177 (KLR)
The court held that the preliminary objection could not be sustained because it was not based on a pure point of law. The issues raised, including the renewal of the lease and allegations of fraud, required the presentation of evidence and could not be determined at the preliminary stage. Furthermore, the absence of...
Source-derived case information.
- Citation
- [2010] KEHC 2177 (KLR)
- Parties
- Plaintiff: Kenya Industrial Estates; Defendant: Anne Chepsiror
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Commercial Civil Case 130 of 2008
- Procedural Posture
- Commercial Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled and dismissed
- Legal Topics
- Lease Renewal, Pleading Fraud, Preliminary Objection, Land Ownership
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kenya Industrial Estates
Plaintiff
Anne Chepsiror
Defendant
Procedural Posture
Commercial Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection on the basis of expired lease and lack of pleaded fraud particulars is sustainable.
- 2 Whether the issue of fraud can be determined as a pure point of law at the preliminary stage.
- 3 Whether the renewal of lease and related evidence can be addressed without a full hearing.
Ratio Decidendi
The court held that the preliminary objection could not be sustained because it was not based on a pure point of law. The issues raised, including the renewal of the lease and allegations of fraud, required the presentation of evidence and could not be determined at the preliminary stage. Furthermore, the absence of particularized fraud in the pleadings was not fatal at this stage, as pleadings may be amended. The court therefore overruled the preliminary objection and dismissed it, allowing the substantive suit to proceed to hearing.
Court Disposition
preliminary objection overruled and dismissed
Orders
- The preliminary objection is overruled and dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
COMMERCIAL CIVIL CASE 130 OF 2008
KENYA INDUSTRIAL ESTATES ………………PLAINTIFF
=VERUS=
ANNE CHEPSIROR …………………………DEFENDANT
R U L I N G
Preliminary Objection
I. Background
1. The main issue in the original suit before this Court is that of the ownership of Land Parcel L.R. Eldoret Municipality Block 8/53 that was originally LR 779/30. The said parcel of land was further sub-divided to Eldoret Municipality Block 8 to that of Eldoret Municipality Bock
- 8/591
- 8/592
- 8/593
- 8/594
- 8/595
- 8/596
- 8/597
- 8/598
2. The land is allegedly purchased from the Municipality of Eldoret on the 1st August 1965, being 5. 06 acres that had been leased out for 34 years (namely 20th august 75 to 1st August 1999). The land is allegedly set aside for staff houses of the Plaintiff’s Company. The lease was envisaged to expired come the year 1999.
3. The Plaintiff clear failed to renew the said lease until the year 2002. Plaintiff having failed to renew the lease and pending of this being so done the renewal remained pending from 2002. The Land Registrar proceeded to issue to third parties including the Defendants a new deeds having been issued.
II. Applications
4. An Application was applied for an injunction dated 18th October 2008. This was later compromised by consent on 19th may 2010 an application to discharge. To this end the application to discharge the injunction and dismiss the suit dated 4th October 2008 is withdrawn.
III. Preliminary Objection
5. 13th October 2008
(a) Lease expired in the year 1999. The normal extension was not applied for.
(b) There was admissions by the Plaintiff/Respondents of this anomaly.
(c) If fraud was being claimed then particulars should have been pleaded particularized.
6. In reply, only a pure point of law may be raised. In order to prove the aspect of fraud in a case evidence must be led.
IV. Opinion
In the case of
Mukisa Biscuit Manufacturing Co. Ltd –versus- End Distributors Ltd (1969) E.A. 696
The issue of when Preliminary Objection would be raised was dealt with. The pure point of law should be raised.
7. In this case, the element of fraud, particulars having not been pleaded was raised as a Preliminary Objection. The pleading may always be amended.
8. The issue of the renewal of lease is also a matter of evidence before Court. There is the issue of ‘Les Pendite’ that requires to also be demonstrated.
9. I over rule the Preliminary Objection raised and dismiss the same with no orders as to costs.
DATED THIS 3RD DAY OF JUNE 2010 AT ELDORET.
M.A. ANG’AWA,
JUDGE.
Advocates
(i) Lumumba Advocate instructed by the firm of M/s Lumumba & Lumumba & Co. Advocates for the Plaintiff/Respondent – Absent
(ii)E.Gumbo Advocate instructed by the firm of M/s Gumbo & Associates for the Defendant/Applicant- Absent