[2017] KEELC 3695 (KLR)
The court held that the issues raised by the defendant in the preliminary objection, specifically regarding limitation and locus standi, are not purely legal issues but require the court to ascertain facts through evidence at trial. The existence of disputed facts, such as whether the plaintiff sold the land or...
Source-derived case information.
- Citation
- [2017] KEELC 3695 (KLR)
- Parties
- Plaintiff: Phillip Mutiso Kimomo; Defendant: Francis Mwikya Kalinzoya
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 79 of 2013
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- OA Angote
- Legal Topics
- Limitation of Actions, Locus Standi, Fraudulent Land Registration, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Phillip Mutiso Kimomo
Plaintiff
Francis Mwikya Kalinzoya
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaintiff has locus standi to institute the suit regarding the suit property.
- 2 Whether the suit is time barred under Section 7 of the Limitation of Actions Act.
- 3 Whether the preliminary objection meets the threshold established in law for such objections.
Ratio Decidendi
The court held that the issues raised by the defendant in the preliminary objection, specifically regarding limitation and locus standi, are not purely legal issues but require the court to ascertain facts through evidence at trial. The existence of disputed facts, such as whether the plaintiff sold the land or whether the defendant fraudulently registered it, precludes determination by preliminary objection. The court found that only after hearing the parties and witnesses can it determine when time started to run for limitation purposes and whether the plaintiff has a valid claim. Therefore, the preliminary objection did not meet the legal threshold and was dismissed as unmeritorious.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection dated 5th November, 2013 is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIROMENT AND LAND COURT
AT MACHAKOS
E.L.C. CASE NO. 79 OF 2013
PHILLIP MUTISO KIMOMO..................................................PLAINTIFF
VERSUS
FRANCIS MWIKYA KALINZOYA......................................DEFENDANT
RULING
The Plaintiff filed this suit together with an Application dated 1st October, 2013 seeking for injunctive orders.
However, on 6th November, 2013, the Defendant filed a Preliminary Objection dated 5th November, 2013 in which he averred that he is the registered proprietor of the suit property and that the Plaintiff has no specific interest in the subject matter and therefore lacks the locus standi.
According to the Defendant’s Preliminary Objection, the suit is time barred pursuant to the provisions of Section 7 of the Limitation of Actions Act. This Ruling is in respect to the said Preliminary Objection.
In his submissions, the Defendant’s advocate submitted that the parties herein entered into an agreement dated 30th April, 1970; that the Plaintiff relinquished his right in the property after selling it and that the suit is defective, misconceived, time barred and devoid of merit.
The Plaintiff’s advocate submitted that the Defendant was only allowed to occupy the Plaintiff’s house as a brother-in-law and that the suit is not an abuse of the court process because it raises discernible questions which can only be answered after a full hearing and not by way of a Preliminary Objection.
Counsel submitted that the Plaintiff only established in the year 2013 that in January 1983, the Defendant had effected registration of the suit property in his name and that Section 7 of the Limitation of Actions is not an absolute bar on commencing legal action for the recovery of land.
The Plaintiff’s counsel further submitted that the Preliminary Objection does not meet the requirements of a Preliminary Objection as set out in the case of Mukisa Biscuit vs West End Distributors.
I have considered the submissions, the Affidavits on record and the authorities.
In his Plaint, the Plaintiff has averred that he inherited the suit property from his parents. However, it is the Plaintiff’s case that in the year 1973, he bought another piece of land in Kilala area, Makueni County where he stayed with his family members.
The Plaintiff has averred that while he was living in Kilala, the Defendant, who is his brother-in-law moved into his house situated on the suit property with his permission; that during the adjudication process in the year 1983, the Defendant fraudulently registered the suit property in his name and that the said title should be cancelled.
In his Affidavit in support of the Application for injunction the Plaintiff deponed that he only learnt that the suit property had been registered in favour of the Defendant in June 2013 when he applied for a copy of the green card.
In his Defence, the Defendant has averred that he purchased the suit property from the plaintiff in 1973.
Considering that the Plaintiff’s case is that the Defendant fraudulently had the suit property registered in his name, while the Defendant’s case is that he purchased the land from the Plaintiff, there is a joinder of issue.
Having admitted that the Plaintiff owned the suit property at some particular point in time, the Defendant cannot claim at this stage that the plaintiff’s suit is an abuse of the court process.
It is only after trial that the court will be able to ascertain what actually transpired.
If the Defendant’s case is that this suit is time barred, then he should raise this issue as a Defence and canvass it at the hearing.
Indeed, it is only after hearing the witnesses that the court will be able to ascertain whether time started to run when the suit property was registered in favour of the Defendant or when the Plaintiff actually came to know that the land had been registered in favour of the Defendant, and if so, when.
It is for those reasons that I find the Notice of Preliminary Objection dated 5th November, 2013 to be unmeritorious. The Preliminary Objection is therefore dismissed with costs.
Dated, signed and delivered in Machakos this27th day of January, 2017.
O. A. ANGOTE
JUDGE