[2018] KEELC 214 (KLR)
The court found that the preliminary objection raised by the defendants did not disclose a pure point of law, as it would require the court to inquire into the factual position regarding ownership of the adjacent parcel of land and whether the orders sought would affect it. The objection was therefore not capable of...
Source-derived case information.
- Citation
- [2018] KEELC 214 (KLR)
- Parties
- Plaintiff: Peter Omwenga Mwebi; Defendant: Sulubu Ziro Ngole; Defendant: John Njoka
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 133 of 2017
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection struck out
- Judges
- JO Olola
- Legal Topics
- Preliminary Objection, Locus Standii, Title to Land, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Omwenga Mwebi
Plaintiff
Sulubu Ziro Ngole
Defendant
John Njoka
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection raised by the defendants discloses a pure point of law capable of disposing of the suit.
- 2 Whether the absence of letters of administration for the deceased registered owner affects the proceedings.
- 3 Whether the orders sought would affect the title to land registered in the name of a third party not enjoined in the suit.
Ratio Decidendi
The court found that the preliminary objection raised by the defendants did not disclose a pure point of law, as it would require the court to inquire into the factual position regarding ownership of the adjacent parcel of land and whether the orders sought would affect it. The objection was therefore not capable of disposing of the suit at this stage. The court held that such concerns, while legitimate, do not form the substance of a preliminary objection as framed. Consequently, the preliminary objection was struck out for lack of merit.
Court Disposition
preliminary objection struck out
Orders
- The preliminary objection dated 31st January 2018 is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CASE NO. 133 OF 2017
PETER OMWENGA MWEBI…………………………………………… PLAINTIFF
VERSUS
SULUBU ZIRO NGOLE
JOHN NJOKA……....………………………………………………... DEFENDANTS
RULING
1. By a Preliminary Objection dated and filed herein on 31st January 2018, the Defendant states as follows:-
“TAKE NOTICE that the Defendants shall, at the hearing raise a Preliminary Objection on the grounds, inter alia:-
1. That the registered owner of all that parcel known as Plot No. Kilifi/Mtwapa/1544 whose boundaries are sought to be affected died on 7th August 2011 and no Letters of Administration have since been taken.
2. That the Orders sought herein goes to the root of Title to Kilifi/Mtwapa /1544, yet the Defendant have no locus to answer to the allegations affecting the Title.
2. The essence of a Preliminary Objection was given by Sir Charles Newbold P in Mukhisa Biscuits Manufucturing Company Ltd –vs- West End Distributors(1969) EA 696 as follows:-
“A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication of pleadings and which if argued as a preliminary Point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration.”
3. The Learned Judge went on to hold at page 701 of the decision as follows:-
“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any facts are to be ascertained or if what is sought is the exercise of judicial discretion.
I have in this regard considered the Preliminary objection as raised before me. What the Defendants appear to me to be saying is the fact that there is another parcel of land adjacent to the one the Plaintiff is claiming which parcel is registered in the name of a third party who is yet to be enjoined in these proceedings. It is accordingly their fear that the orders made in this suit are likely to affect the adjacent portion of land.
5. However legitimate those concerns may be, I do not with respect think that the same can become the substance of a Preliminary Objection. For a start, there is no clear point of law which is raised by the objection as framed. It is clear to me that before the Court can accept the objection, it would still be compelled to carry out an inquiry as to the factual position of the ownership of the said adjacent parcel of land and if indeed the orders issued herein would adversely affect it.
6. Whatever the case, I am not satisfied that the sort of objection raised herein may dispose of the suit as framed between the parties. Accordingly, I find no merit on the same. The Preliminary Objection is hence struck out.
7. As the Plaintiff did not file any submissions and/or response to the objection, I make no order as to costs.
Dated, signed and delivered at Malindi this 14th day of December, 2018.
J.O. OLOLA
JUDGE