[2018] KEELC 719 (KLR)
The court found that the plaintiffs instituted the matter as representatives of several others but did not plead a trust. However, the issues raised regarding locus standi and representation are matters that require evidence and cannot be conclusively determined at the preliminary objection stage. The court held...
Source-derived case information.
- Citation
- [2018] KEELC 719 (KLR)
- Parties
- Plaintiff: Mohammed Kweya Ojuok & 6 Others; Defendant: County Government of Kakamega; Defendant: Abdallah Ali Saghar; Defendant: Saida Abbas Hassan; Defendant: Mumias Nubian Community; Defendant: Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 31 of 2012
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs
- Judges
- NA Matheka
- Legal Topics
- Locus Standi, Representative Suits, Preliminary Objection, Ownership of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohammed Kweya Ojuok & 6 Others
Plaintiff
County Government of Kakamega
Defendant
Abdallah Ali Saghar
Defendant
Saida Abbas Hassan
Defendant
Mumias Nubian Community
Defendant
Hon. Attorney General
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaintiffs have locus standi to bring the suit as representatives of others.
- 2 Whether the absence of a pleaded trust or clarity on representation invalidates the suit at the preliminary stage.
Ratio Decidendi
The court found that the plaintiffs instituted the matter as representatives of several others but did not plead a trust. However, the issues raised regarding locus standi and representation are matters that require evidence and cannot be conclusively determined at the preliminary objection stage. The court held that the preliminary objection did not raise pure points of law but rather issues that should be addressed during the hearing of the suit. Consequently, the preliminary objection was found to lack merit and was dismissed with costs to the plaintiffs.
Court Disposition
preliminary objection dismissed with costs
Orders
- The preliminary objection is dismissed with costs to the plaintiffs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC CASE NO. 31 OF 2012
MOHAMMED KWEYA OJUOK& 6 OTHERS.......PLAINTIFFS/RESPONDENTS
VERSUS
COUNTY GOVERNMENTOF KAKAMEGA......1STDEFENDANTS/APPLICANTS
ABDALLAH ALI SAGHAR
SAIDA ABBAS HASSAN
MUMIAS NUBIAN COMMUNUTY....................................................2NDDEFENDANT
HON. ATTORNEY GENERAL............................................................3RD DEFENDANT
RULING
The first defendant raised a preliminary objection as per paragraph 3 of their amended defence that the plaintiff’s do not have any locus standi to bring the suit. It is not clear who the plaintiffs’ are representing and there is no establishment of a trust. The land belongs to Mumias County Council from 1957 until subdivision in 2012. The 2nd defendant states that the pleadings are not clear as to the number of people involved. The 3rd respondents opted not to participate in the preliminary objection.
The plaintiff submitted that, the plaintiffs are properly before this court and that several people live on this land.
This court has carefully considered the preliminary objectionand the submissions herein. On perusal of the court file I find that the matter wasinstituted by the plaintiff’s as representatives of several others. There is no trust pleaded. I find that the issues raised herein will be a matter of evidence. I find that the preliminary objection has no merit and I dismiss it with costs.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 22ND DAY NOVEMBER 2018.
N.A. MATHEKA
JUDGE