[2017] KEELC 145 (KLR)
The court found that the grounds raised in the preliminary objection—namely, the lack of a supporting affidavit and absence of title documents—were not pure points of law. Instead, they required the court to consider evidence to determine their veracity. As such, these issues could not be properly determined by way...
Source-derived case information.
- Citation
- [2017] KEELC 145 (KLR)
- Parties
- Plaintiff: Loyford Muriuki Riara; Plaintiff: Zipporah Muthoni Riara; Plaintiff: Catherine Ciandeke; Defendant: Kithinji Njoka; Defendant: Murithi Njoka; Defendant: Mutembei Njoka; Defendant: Justin Nyaga Nkiini; Interested Party: Susan Ciamwari
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 15 of 2017
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Preliminary Objection, Originating Summons Requirements, Affidavit Evidence, Land Title Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Loyford Muriuki Riara
Plaintiff
Zipporah Muthoni Riara
Plaintiff
Catherine Ciandeke
Plaintiff
Kithinji Njoka
Defendant
Murithi Njoka
Defendant
Mutembei Njoka
Defendant
Justin Nyaga Nkiini
Defendant
Susan Ciamwari
Interested Party
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the absence of a supporting affidavit renders the originating summons incompetent.
- 2 Whether failure to attach a copy of the register, certificate of search, or title deed invalidates the originating summons.
Ratio Decidendi
The court found that the grounds raised in the preliminary objection—namely, the lack of a supporting affidavit and absence of title documents—were not pure points of law. Instead, they required the court to consider evidence to determine their veracity. As such, these issues could not be properly determined by way of a preliminary objection. The court therefore dismissed the preliminary objection, holding that the matters raised should be addressed during the substantive hearing of the suit, where evidence could be adduced and tested.
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 CHUKA
CHUKA ELC CASE NO 15 OF 2017
FORMERLY MERU ELC CASE NO. 170 OF 2014
IN THE MATTER OF 1 ½ ACRE OF LAND WITHIN LAND PARCELNO. MAGUMONI/THUITA/494 REGISTERED IN THE NAMES OF KITHINJI NJOKA, MURITHINJOKA, MUTEMBEI NJOKA
LOYFORD MURIUKI RIARA…………..............................1ST PLAINTIFF
ZIPPORAH MUTHONI RIARA………...........................…2ND PLAINTIFF
CATHERINE CIANDEKE…………………........................3RD PLAINTIFF
VERSUS
KITHINJI NJOKA…………………………..…..........…..1ST DEFENDANT
MURITHI NJOKA…………………………...……......…2ND DEFENDANT
MUTEMBEI NJOKA………………………............…….3RD DEFENDANT
JUSTIN NYAGA NKIINI………….…………….........…4TH DEFENDANT
SUSAN CIAMWARI…………………..……..…......INTERESTED PARTY
RULING
1. This ruling concerns a Notice of Preliminary Objection filed by Advocate Nyamu Nyaga on 2nd March, 2015 on behalf of the 1st, 2nd and 3rd defendants.
2. The Preliminary Objection was heard interpartes on 18. 7.2017. Mr Nyamu Nyaga told the court that he was only interested in grounds 5 and 6 of the Preliminary Objection as all the other issues had been addressed subsequent to the filing of the Preliminary Objection.
3. Paragraph 5 states that the Originating Summons dated 3rd November, 2014 and the subsequent amended Originating Summons dated 11th February, 2014 have no leg to stand on in that they are not supported by any affidavit as required by law.
4. Paragraph 6 states that there is no copy of the Register, Certificate of Search and /or a copy of the Title Deed to support the Originating Summons filed in Court on 3rd November, 2014 as required by the law.
5. I do find that the issues being raised in this Preliminary Objection are not pure points of law as they invite arguments whose veracity can only be established through provision of evidence.
6. In the circumstances, this Preliminary Objection is dismissed.
7. Costs shall be in the cause.
8. Parties are ordered to move expeditiously so that the suit can be heard and determined on its merits.
9. It is so ordered.
Delivered in open court at Chuka this 18th day of July, 2017 in the presence of:
CA: Ndegwa
Muriithi h/b Miss Mutinda for the plaintiffs
Nyamu Nyaga for the defendants
P. M. NJOROGE,
JUDGE.