[2024] KEELC 5488 (KLR)
The court held that the issue of whether the 5th defendant has capacity to be sued is not suitable for determination as a preliminary objection. Such a question requires the presentation of evidence, typically through affidavits, where the party in question can explain why they believe they have been wrongly sued...
Source-derived case information.
- Citation
- [2024] KEELC 5488 (KLR)
- Parties
- Plaintiff: Beatrice Matoya; Plaintiff: Tabitha Bonareri Matoya; Defendant: Hon. Attorney General; Defendant: Commissioner of Lands; Defendant: Land Registrar, Kisii; Defendant: Henry Manyange Matoya; Defendant: James Manyange Obiri
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 24 of 2020
- Procedural Posture
- Review Application / Ruling on Application for Review of Preliminary Objection Decision
- Outcome
- Application for review on the issue of capacity dismissed; no orders as to costs.
- Judges
- M Sila
- Legal Topics
- Preliminary Objection, Capacity to Be Sued, Limitation of Actions, Res Judicata
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Matoya
Plaintiff
Tabitha Bonareri Matoya
Plaintiff
Hon. Attorney General
Defendant
Commissioner of Lands
Defendant
Land Registrar, Kisii
Defendant
Henry Manyange Matoya
Defendant
James Manyange Obiri
Defendant
Procedural Posture
Review Application / Ruling on Application for Review of Preliminary Objection Decision
Legal Issues
- 1 Whether the court failed to address the issue of the 5th defendant's capacity to be sued in its earlier ruling.
- 2 Whether the issue of capacity to be sued can be determined as a preliminary objection.
- 3 Whether the 5th defendant should be struck out of the suit at this stage.
Ratio Decidendi
The court held that the issue of whether the 5th defendant has capacity to be sued is not suitable for determination as a preliminary objection. Such a question requires the presentation of evidence, typically through affidavits, where the party in question can explain why they believe they have been wrongly sued and the plaintiff can respond. The court therefore dismissed the third limb of the preliminary objection regarding the 5th defendant's capacity, but clarified that this dismissal is without prejudice to the 5th defendant's right to apply to be struck out of the suit through the appropriate evidentiary process.
Court Disposition
Application for review on the issue of capacity dismissed; no orders as to costs.
Orders
- The third limb of the preliminary objection regarding the 5th defendant's capacity to be sued is dismissed.
- Dismissal is without prejudice to the 5th defendant's right to apply to be struck out through affidavit evidence.
Full Case Text
Judgment text and source record
32 paragraphs
Matoya & another v Attorney General & 4 others (Environment & Land Case 24 of 2020) [2024] KEELC 5488 (KLR) (25 July 2024) (Ruling)
Neutral citation: [2024] KEELC 5488 (KLR)
Republic of Kenya
In the Environment and Land Court at Kisii
Environment & Land Case 24 of 2020
M Sila, J
July 25, 2024
Between
Beatrice Matoya
1st Plaintiff
Tabitha Bonareri Matoya
2nd Plaintiff
and
Hon. Attorney General
1st Defendant
Commissioner of Lands
2nd Defendant
Land Registrar, Kisii
3rd Defendant
Henry Manyange Matoya
4th Defendant
James Manyange Obiri
5th Defendant
Ruling
1. The application before me is that dated 3 April 2023 but filed on 4 July 2023 by the 4th defendant. It asks this court to be pleased to review its ruling delivered on 1 March 2023. The application is based on the ground that in my said ruling, I did not address myself as to whether the 5th defendant had capacity to be sued. The application is opposed by the plaintiff.
2. My ruling of 1 March 2023 was was in respect of two preliminary objections, one of which was raised by the 4th defendant. In his preliminary objection, the applicant raised three issues being (i) that this suit is time barred pursuant to Section 7 of the Limitation of Actions Act, (ii) that the suit is res judicata, and (iii) that the 5th defendant lacks capacity to be sued. The other preliminary objection was more or less to the same effect as it asked that the suit be struck out for being time barred and res judicata. I heard the objections but I was not convinced. On the issue of res judicata, various cases were cited but my assessment was that they do not make this suit res judicata as they were either dealing with different subject matter or were withdrawn and not heard on merits. On whether the suit is time barred, I directed that that is a matter that could only adequately be canvassed during the hearing of the suit. In this application the 4th defendant urges that in my ruling of 1 March 2023, I did not address myself on the issue whether the 5th defendant has capacity to be sued.
3. I have gone through that ruling and I agree that I may not have addressed myself on the 3rd limb of the preliminary objection, that is whether the 5th defendant has capacity to be sued.
4. I now address myself on that issue and I will be brief. I hold as follows :
5. It is for the 5th defendant to raise complaint on why he has been sued. If he feels that he has been wrongly sued, he is at liberty to file an application to be struck out of this suit. That, in my humble view, is a matter that can only be canvassed through the taking of evidence in an affidavit, where the 5th defendant can contend that he is wrongly sued, and the plaintiff respond, and say why they feel that the 5th defendant has been properly sued. I cannot address myself on that issue as a preliminary objection. I will thus proceed to dismiss the third limb of the preliminary objection but without prejudice to the right of the 5th defendant to apply to be struck out as I have elaborated above.
6. There will be no orders as to costs.
7. It is so ordered.
DATED AND DELIVERED THIS 25 DAY OF JULY 2024JUSTICE MUNYAO SILAJUDGE, ENVIRONMENT AND LAND COURTAT KISII