[2022] KEELC 3169 (KLR)
The court held that the preliminary objection lacked merit because the determination of when the plaintiffs' occupation of the suit land began is a factual issue that can only be resolved after hearing evidence from both parties. Since the preliminary objection required the court to ascertain facts, it did not...
Source-derived case information.
- Citation
- [2022] KEELC 3169 (KLR)
- Parties
- Plaintiff: Joel Donkol Ole Pejo; Plaintiff: Rokompe Lemilto Maruna; Plaintiff: Nangeento Ene Ketukei; Plaintiff: Tima Ole Kikanai; Plaintiff: Jeremiah Ole Panto; Defendant: Pius Nyabuga Mochoge
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E004 of 2021
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- MN Gicheru
- Legal Topics
- Adverse Possession, Preliminary Objection, Limitation Periods, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joel Donkol Ole Pejo
Plaintiff
Rokompe Lemilto Maruna
Plaintiff
Nangeento Ene Ketukei
Plaintiff
Tima Ole Kikanai
Plaintiff
Jeremiah Ole Panto
Plaintiff
Pius Nyabuga Mochoge
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaintiffs' suit for adverse possession is bad in law for failure to satisfy the 12-year statutory period.
- 2 Whether the preliminary objection raises a pure point of law or requires determination of factual issues.
Ratio Decidendi
The court held that the preliminary objection lacked merit because the determination of when the plaintiffs' occupation of the suit land began is a factual issue that can only be resolved after hearing evidence from both parties. Since the preliminary objection required the court to ascertain facts, it did not qualify as a pure point of law. The court reiterated that preliminary objections must be confined to clear points of law and not matters that require factual investigation. Consequently, the preliminary objection was dismissed, and the matter was to proceed to full hearing on the merits.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection dated 17th May, 2021 is dismissed.
- Costs in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
Pejo & 4 others v Mochoge (Environment & Land Case E004 of 2021) [2022] KEELC 3169 (KLR) (16 June 2022) (Ruling)
Neutral citation: [2022] KEELC 3169 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Case E004 of 2021
MN Gicheru, J
June 16, 2022
Between
Joel Donkol Ole Pejo
1st Plaintiff
Rokompe Lemilto Maruna
2nd Plaintiff
Nangeento Ene Ketukei
3rd Plaintiff
Tima Ole Kikanai
4th Plaintiff
Jeremiah Ole Panto
5th Plaintiff
and
Pius Nyabuga Mochoge
Defendant
Ruling
1. This ruling is on the preliminary objection dated 17th May, 2021. The preliminary objection is broken down into seven parts.In summary, it is to the effect that the Plaintiffs’ suit is bad in law and ought to be struck out because it is based on a claim of adverse possession of the Defendant’s suit land namely Kajiado/loodariak/244 yet on 20th August, 2015, when Defendant purchased the suit land, they were not in possession.A period of 12 years has not elapsed since then and the suit is thus bad in law.The fifth Plaintiff has sworn a replying affidavit dated 4th March, 2022 opposing the preliminary objection deposing, inter alia, that the Plaintiffs were born on the suit land.Only the Plaintiffs’ counsel filed written submissions on 8/3/2022 urging, inter alia, that a preliminary point of law cannot be anchored on evidence but on pure points of law as per the celebrated case of Mukisa Bisbuit Manufacturing Company, Limited –versus- West End Distributors Limited (1969) E.A. 968. In the above case, Newbold JA had this to say at page 701;“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection.A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is urgued on the assumption that all the facts pleaded by the other side are correct.It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
2. I have carefully considered the Preliminary Objection in its entirety including the submissions and the other material by both sides.I find that the Preliminary Objection has no merit because the issue of when the occupation of the suit land by the Plaintiff begun is one of the issues to be decided after hearing the evidence. Before this evidence has been adduced and subjected to cross-examination and before the evidence in rebuttal is also given on oath and subjected to cross examination, it is not possible decide when the occupation began.Given the above scenario, it is obvious that the Preliminary Objection is not on a pure point of law. I find it has no merit. I dismiss it.Costs in the cause.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 16TH DAY OF JUNE, 2022. M.N. GICHERUJUDGE