[2021] KEELC 1294 (KLR)
The court found that the preliminary objection raised by the plaintiff was not based on pure points of law but rather on disputed facts, such as the period of occupation, the identity of the party in occupation, and the validity of the fifth defendant's power of attorney. The court emphasized that a preliminary...
Source-derived case information.
- Citation
- [2021] KEELC 1294 (KLR)
- Parties
- Plaintiff: Magdalene Nyokabi Guandai (suing as the Administrator of the Estate of Guandai Karugu, deceased); Defendant: Peter Kibet Tuei; Defendant: Mohammed O. Omar; Defendant: Hassan Shaba Adan; Defendant: The Land Registrar, Kajiado; Defendant: Samuel Pertet Mepukori
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 65 of 2019
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- JE Gicheru
- Legal Topics
- Limitation of Actions, Locus Standi, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Magdalene Nyokabi Guandai (suing as the Administrator of the Estate of Guandai Karugu, deceased)
Plaintiff
Peter Kibet Tuei
Defendant
Mohammed O. Omar
Defendant
Hassan Shaba Adan
Defendant
The Land Registrar, Kajiado
Defendant
Samuel Pertet Mepukori
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the fifth defendant's claim to KAJIADO/OLE KASASI/12 is time barred under Section 7 of the Limitation of Actions Act.
- 2 Whether the fifth defendant has locus standi given the alleged defect in his power of attorney.
- 3 Whether the inclusion of the fifth defendant as a party will prejudice the plaintiff.
Ratio Decidendi
The court found that the preliminary objection raised by the plaintiff was not based on pure points of law but rather on disputed facts, such as the period of occupation, the identity of the party in occupation, and the validity of the fifth defendant's power of attorney. The court emphasized that a preliminary objection should only be entertained where it raises clear points of law and not where the facts are contested or require further proof. Excluding a party at this stage, when their stake in the suit has not been fully determined, would be unjust and potentially prejudicial. Accordingly, the preliminary objection was dismissed to allow the matter to proceed to full hearing where all...
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection dated 13/4/2021 is dismissed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT AT KAJIADO
ELC NO. 65 OF 2019
MAGDALENE NYOKABI GUANDAI(suing as the Administrative of the
Estate of the Guandai Karugu deceased)...................................PLAINTIFF
-VS-
PETER KIBET TUEI......................................................1ST DEFENDANT
MOHAMMED O. OMAR...............................................2ND DEFENDANT
HASSAN SHABA ADAN................................................3RD DEFENDANT
THE LAND REGISTRAR, KAJIADO...........................4TH DEFENDANT
SAMUEL PERTET MEPUKORI..................................5TH DEFENDANT
RULING
This ruling is on the preliminary objection dated 13/4/2021.
The preliminary objection which is by the Plaintiff is based on three grounds namely;
1) THAT the claim by the fifth Defendant to the suit land known as KAJIADO/OLE KASASI/12 is time barred as per Section 7 of the Limitation of Actions Act because the Plaintiff’s father acquired said land 46 years ago.
2) THAT the fifth defendant lacks locus standi to appear as his power of attorney is defective.
3) THAT the inclusion of the fifth Defendant as a party will prejudice the Plaintiff.
The preliminary objection is opposed by the fifth Defendant on the grounds that under Section 26 (a) of the same Act, where the suit is based on the fraud of the Defendant, it is exempted from the Limitation in Section 7.
Counsel for the plaintiff filed written submissions on 26th May, 2021 while the fifth Defendant’s counsel filed his on 6th August, 2021.
I have carefully considered the preliminary objection as well as the facts so far disclosed and the submissions by learned counsel for the parties.
I dismiss the preliminary objection for the following reasons;
Firstly, it is a draconian move to lock out a party who has a stake in the suit when the facts have not been proven. Should it later turn out such a party ought to have been heard, an injustice will have been occasioned.
Secondly, the preliminary objection is not based on pure points of law because it has raised facts that are not yet proved namely, who is in occupation, the plaintiff’s period of occupation and the validity of the fifth defendant’s power of attorney.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 1ST DAY OF NOVEMBER, 2021.
M.N. GICHERU
JUDGE