[2017] KEELC 3122 (KLR)
The court held that the issues raised in the preliminary objection, specifically regarding the validity of the consent from the Land Adjudication and Settlement Officer and the jurisdiction of the initial court, are not pure points of law. These issues require the court to consider evidence and cannot be determined...
Source-derived case information.
- Citation
- [2017] KEELC 3122 (KLR)
- Parties
- Plaintiff: Peter Mugo; Plaintiff: Catherine Igoki Mugo; Defendant: Stephen Njagi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 21 of 2017
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- FM Njoroge
- Legal Topics
- Land Adjudication, Jurisdiction of Courts, Preliminary Objection, Consent Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mugo
Plaintiff
Catherine Igoki Mugo
Plaintiff
Stephen Njagi
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit was instituted without a valid consent of the Land Adjudication and Settlement Officer contrary to statutory requirements.
- 2 Whether the initial court lacked jurisdiction and if transfer to the current court cures the defect.
- 3 Whether the issues raised in the preliminary objection are pure points of law suitable for determination without evidence.
Ratio Decidendi
The court held that the issues raised in the preliminary objection, specifically regarding the validity of the consent from the Land Adjudication and Settlement Officer and the jurisdiction of the initial court, are not pure points of law. These issues require the court to consider evidence and cannot be determined solely on the basis of legal arguments. Consequently, the preliminary objection does not meet the threshold established in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd for what constitutes a proper preliminary objection. The objection was therefore dismissed, and the matter was directed to proceed to pre-trial conferencing and directions.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection dated 12th July, 2016 is dismissed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 21 OF 2017
FORMERLY MERU ELC CASE NO.44 OF 2016
PETER MUGO…………….……..1ST PLAINTIFF
CATHERINE IGOKI MUGO…….2ND PLAINTIFF
VERSUS
STEPHEN NJAGI..……………….. DEFENDANT
RULING
1. The Notice of Preliminary Objection dated 12th July, 2016 has the following grounds:
1. The suit has been instituted without a valid consent of the Land Adjudication and Settlement Officer contrary to section 30 (1) of the Land Adjudication Act (Cap. 284) as read with section 8 (1) of the Land Consolidation Act (Cap 283) Laws of Kenya.
2. The suit was initially in a court that lacked jurisdiction in light of the provisions of Article 165 (5) (b) of the constitution and its transfer thereafter is inconsequential.
3. The parties have filed written submissions.
4. I have considered the submissions proffered by the parties and the authorities cited in this matter.
5. I find that whether a letter of consent addressed to a Chief Magistrate can suffice as a basis for instigation of a suit in a superior court is not a pure point of law. It invites arguments and raises an issue that can only be settled after taking the evidence of the parties.
6. Whether or not a suit initially instituted in the lower court can again be instituted in a superior court is not a pure point of law. The issue can only be determined after evidence is adduced by the parties.
7. As I am writing this short ruling, magistrate’s courts are hearing Environment and Land Matters. The issue of Jurisdiction as regards ELC matters, at this time, cannot be said to be a pure point of law.
8. In the circumstances, the Preliminary Objection filed by the defendant dated 12th July, 2016 is hereby dismissed.
9. Costs shall be in the cause.
10. Parties to come to court for pre-trial conferencing and for directions on 17th July, 2017.
11. It is so ordered.
Delivered in open court at Chuka this 12th day of April, 2017 in the presence of:
CA: Ndegwa
Dennis Kithinji h/b Mutunga for the Plaintiff
Mark Muriithi present for the Defendant
P.M. NJOROGE
JUDGE