[2023] KEELC 21615 (KLR)
The court found that the preliminary objection lacked merit because it was not anchored on any defence or pleadings by the defendants. The only pleadings on record were those of the plaintiff, and without a defence, it was impossible to determine what facts were disputed or undisputed. The court also clarified that...
Source-derived case information.
- Citation
- [2023] KEELC 21615 (KLR)
- Parties
- Plaintiff: Gladys Nkina Sautet; Defendant: Samuel Parapipi Kombei; Defendant: Parmereta Pararang; Defendant: Ntinanoi Sameri; Defendant: Lonte Sipironik; Defendant: Kole Rawua Tumpere; Defendant: Kitamwes Tumpere
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 6 of 2022
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- MN Gicheru
- Legal Topics
- Limitation of Actions, Eviction, Jurisdiction, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gladys Nkina Sautet
Plaintiff
Samuel Parapipi Kombei
Defendant
Parmereta Pararang
Defendant
Ntinanoi Sameri
Defendant
Lonte Sipironik
Defendant
Kole Rawua Tumpere
Defendant
Kitamwes Tumpere
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is time barred under section 7 of the Limitation of Actions Act.
- 2 Whether the preliminary objection is properly grounded in law and procedure.
- 3 Whether the court lacks jurisdiction to entertain the suit due to limitation.
Ratio Decidendi
The court found that the preliminary objection lacked merit because it was not anchored on any defence or pleadings by the defendants. The only pleadings on record were those of the plaintiff, and without a defence, it was impossible to determine what facts were disputed or undisputed. The court also clarified that the plaintiff was not seeking to recover land but rather to evict certain defendants from part of the land, as she and her family were already in occupation. Therefore, the preliminary objection, which was premised on limitation and lack of jurisdiction, was premature and unsubstantiated at this stage. The objection was dismissed with costs in the cause.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection dated February 28, 2023 is dismissed.
- Costs in the cause.
Full Case Text
Judgment text and source record
32 paragraphs
Sautet v Kombei & 5 others (Environment & Land Case 6 of 2022) [2023] KEELC 21615 (KLR) (20 November 2023) (Ruling)
Neutral citation: [2023] KEELC 21615 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Case 6 of 2022
MN Gicheru, J
November 20, 2023
Between
Gladys Nkina Sautet
Plaintiff
and
Samuel Parapipi Kombei
1st Defendant
Parmereta Pararang
2nd Defendant
Ntinanoi Sameri
3rd Defendant
Lonte Sipironik
4th Defendant
Kole Rawua Tumpere
5th Defendant
Kitamwes Tumpere
6th Defendant
Ruling
1. This ruling is on the notice of preliminary objection dated February 28, 2023. The objection which is by the 1st, 2nd, 3rd, 5th and 6th defendant is based on three grounds.i.The suit is time barred by dint of section 7 of the Limitation of Actions Act.ii.By reasons of the aforesaid provisions of law, the suit is misconceived, incompetent, an abuse of the court process and a complete nullity.iii.Further, by reason of the aforesaid, this court lacks jurisdiction to entertain the suit and the entire proceedings herein which should be struck out with costs to the defendants.
2. Further to the notice, the counsel for the five defendants has filed written submissions dated May 5, 2023 in which he identifies six undisputed facts.
3. The preliminary objection is opposed by the plaintiff whose counsel has filed grounds of opposition dated April 27, 2023. It is urged in the said grounds that preliminary objection does not meet the legal threshold and it is vexatious, misconceived and a waste of court’s time.Secondly, the suit is not time barred as alleged and the preliminary objection is a delaying tactic which should be dismissed. The Plaintiff’s counsel also filed Written Submissions on the same date.
4. I have carefully consideration the preliminary objection in its entirety including the grounds in support, those in opposition, the submissions by learned council for the parties and the law cited therein. I have also perused the entire record. I find that the preliminary objection has no merit for the following reasons.
5. Firstly, it is not correct to say that there are some undisputed facts. As for now, we do not know what is disputed and what is not disputed because the defendants have not filed any defence, witness statements or documents. Without such pleadings we cannot tell which part of the plaintiff’s claim is undisputed by the defendants. We need to see their response to the plaintiff’s claim to know what they dispute and what they do not dispute.
6. Secondly, the defendants’ preliminary objection is not anchored on any pleadings. The only pleadings on record are those by the plaintiff. After the service of the defence, the plaintiff will still have a right to file a reply to the defence.
7. Finally, it is not correct to say that the plaintiff is seeking to recover land. What she is seeking is the eviction of the 2nd, 3rd, 4th, 5th and 6th defendants from part of the land. From her pleadings especially paragraph 10, it is clear that she and her family live on the suit land.For the above stated reasons, the preliminary objection dated February 28, 2023 is dismissed. Costs in the cause.
DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 20TH DAY OF NOVEMBER, 2023. M.N. GICHERUJUDGE