[2012] KEHC 3420 (KLR)
The court held that, given the existence of factual disputes—specifically, whether the 1st defendant sold only his portion or the entire land including the plaintiff's portion—and the legal ambiguity between Sections 29 and 30 of the Land Adjudication Act, it would be premature to strike out the suit at this stage....
Source-derived case information.
- Citation
- [2012] KEHC 3420 (KLR)
- Parties
- Plaintiff: Kuta Kiriginza Lunganzi; Plaintiff: Deri Kiringi Lunganzi; Defendant: Pande Mkauma Pande; Defendant: Kanti Jetta Ramji
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 8 of 2012
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed; suit to proceed to trial
- Judges
- CW Meoli
- Legal Topics
- Land Adjudication, Preliminary Objection, Ministerial Decision Challenge
- 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
Kuta Kiriginza Lunganzi
Plaintiff
Deri Kiringi Lunganzi
Plaintiff
Pande Mkauma Pande
Defendant
Kanti Jetta Ramji
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether a decision of the Minister of Lands under Section 29 of the Land Adjudication Act can be challenged by ordinary suit.
- 2 Whether the preliminary objection raised by the 2nd defendant is sustainable at this stage.
- 3 Whether the 1st defendant sold only his portion or the entire land including the plaintiff's portion.
Ratio Decidendi
The court held that, given the existence of factual disputes—specifically, whether the 1st defendant sold only his portion or the entire land including the plaintiff's portion—and the legal ambiguity between Sections 29 and 30 of the Land Adjudication Act, it would be premature to strike out the suit at this stage. The preliminary objection does not raise a pure point of law that can be determined without evidence. Therefore, in the interest of justice and following the guidance in MUKHISA BISCUITS CO. V WESTEND DISTRIBUTORS CO., the suit should proceed to trial, and the 2nd defendant is at liberty to raise the objections again after evidence is taken or at the close of trial.
Court Disposition
preliminary objection dismissed; suit to proceed to trial
Orders
- The suit is to proceed to trial.
- The 2nd defendant may raise the same legal objections during or after trial.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT MALINDI
Civil Suit 8 of 2012
KUTA KIRIGINZA LUNGANZI .................................. 1ST PLAINTIFF
DERI KIRINGI LUNGANZI ........................................2ND PLAINTIFF
-VS-
PANDE MKAUMA PANDE ...................................1ST DEFENDANT
KANTI JETTA RAMJI ..........................................2ND DEFENDANT
RULING
1. I have now carefully read the written submissions of the 2nd defendant and those of the plaintiff with regard to the preliminary objection filed on 16th March, 2012 on behalf of the 2nd defendant. I have also perused the pleadings on record.
2. Because of the decision I have arrived at, I do not consider it prudent at this stage of the proceedings to restate the submissions of the parties or make any findings with respect to the question whether the decision of the Minister of Lands made pursuant to Section 29 of the Land Adjudication Act can be challenged by way of an ordinary suit. Suffice to say that counsel for the Plaintiff has raised a counter argument to the effect that there is some ambiguity in the matter because section 29 appears to conflict with section 30 of the Land Adjudication Act.
3. Secondly, there appears to be a dispute on the question whether the 1st defendant sold off only his portion of the land awarded to him through the Minister’s decision, or the entire piece which included the plaintiff’s portion. Thus, applying the ratio decidendi in the celebrated case of MUKHISA BISCUITS CO. V WESTEND DISTRIBUTORS CO. [1969] EA 469, I am of the considered view that the suit ought to be sustained to go for trial, in the interest of doing justice in this long-running dispute.
4. The 2nd defendant will be at liberty to raise the same legal objections, either during the trial, after relevant evidence has been taken or at the close of trial.
I make no orders as to costs.
Delivered and signed at Malindi this2ndday ofJuly, 2012in the presence of Mr. Oloo for defendant and Mr. Obaga holding brief for Mr. Mutugi for the plaintiff. Court clerk - Evans/Leah.
C. W. MEOLI
JUDGE