[2010] KEHC 2722 (KLR)
The court found that the facts underlying the preliminary objection—specifically, the existence of sale agreements, payment of consideration, and whether Land Control Board consent was obtained—were all contested by the parties. According to the principle in Mukisa Biscuits vs Westend Distribution Ltd, a preliminary...
Source-derived case information.
- Citation
- [2010] KEHC 2722 (KLR)
- Parties
- Applicant: William Lawrence Wachira; Respondent: Sewani Ole Ntani Moinami
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 172 of 2008
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled
- Judges
- I Lenaola, DW Mbuteti
- Legal Topics
- Limitation of Actions, Land Control Board Consent, Specific Performance, Preliminary Objection, Sale of Land, Mesne Profits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Lawrence Wachira
Applicant
Sewani Ole Ntani Moinami
Respondent
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is time-barred under the Limitation of Actions Act.
- 2 Whether the transaction is null and void for lack of Land Control Board consent under the Land Control Act.
- 3 Whether the preliminary objection can be determined without resolving contested facts.
Ratio Decidendi
The court found that the facts underlying the preliminary objection—specifically, the existence of sale agreements, payment of consideration, and whether Land Control Board consent was obtained—were all contested by the parties. According to the principle in Mukisa Biscuits vs Westend Distribution Ltd, a preliminary objection can only be sustained where the facts are not in dispute and the objection raises a pure point of law. Since the facts in this case are disputed and require determination at trial, the preliminary objection could not be sustained. The court therefore overruled the preliminary objection with costs to the plaintiff.
Court Disposition
preliminary objection overruled
Orders
- The preliminary objection is overruled with costs to the plaintiff.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS
Civil Case 172 of 2008
WILLIAM LAWRENCE WACHIRA ……………………………………………………… APPLICANT
VERSUS
SEWANI OLE NTANI MOINAMI ……….…………………………………………...RESPONDENT
RULING
1. The Preliminary Objection dated 8. 7.2009 by the Defendant has two limbs;
i.that the suit herein is time-barred.
ii.that the land, subject of the suit is agricultural land and is governed by the provisions of the Land Control Act, Cap 302 and there being no consent under section 8(1) of that Act, the transaction between the parties is null and void.
2. In the end, the Defendant seeks orders that the suit herein be struck off with costs.
3. I note that the Plaintiff, who has always acted in person, filed this suit on 6. 8.2007 and it is his contention that by “an agreement made between(sic) the Plaintiff and the Defendant on 17th March, 1989 and by a further agreement… on 10th July 1991, the Defendant agreed to sell to the Plaintiff a portion of his land known as Kajiado/Oloolotikoshi/Kitengela/46 which in turn forms a portion of Kajiado/Oloolotikoshi/Kitengela/1847 measuring 16. 194 hectares (40 acres)”.He then claims that by a further agreement made on 12. 5.1992, the Defendant agreed to purchase a further 4. 048 hectares (10 acres or thereabouts) from the Plaintiff making in total 50 acres to be sold to him by the Defendant. That the necessary Land Control Board Consent was thereafter obtained and L.R.No. Kajiado/Kitengela/16500 measuring 20. 63 hectares was created but the Defendant refused to transfer the said parcel of land to him. The orders sought in the suit include inter-alia orders of specific performance of the contract, mesne profits and costs.
4. In his Statement of Defence filed on 2. 4.2009, the Defendant denies that he entered into any Sale Agreements with the Plaintiff on the dates alleged; denies that he received any monies in purchase of any land by the Plaintiff and denies that any consent was obtained by the parties to enable transfer of the land to the Plaintiff. That in Kajiado Land Disputes Tribunal Case No. 394/2007 touching on the suit property, the Plaintiff was ordered to remove the caution he had placed on the land.
5. There it is then, what is before me is a Preliminary Objection and as I understand the decision in Mukisa Biscuits vs Westend Distribution Ltd [1969] E.A. 696 a Preliminary Objection should only succeed if the facts in issue are uncontested and the objection is raised on a pure of point which if upheld, would bring an end to the dispute. In this case, the facts pleaded by the Plaintiff are wholly contested by the Defendant i.e existence or otherwise of the Sale Agreements; payment or otherwise of the consideration, and existence or otherwise of the Land Control Board consent. These are the issues to be determined at the trial and they cannot be determined by way of an Objection such as the present one. Had the Defendant admitted all the above facts, and he has not, then I would have been ready to be inclined to consider the objection. Without doing so the objection is doomed.
6. I will quickly overrule the Preliminary Objecting with costs to the Plaintiff.
7. Orders accordingly.
ISAAC LENAOLA
JUDGE
Countersigned and delivered at Machakos this 19thday of March 2010.
H.P.G. WAWERU
JUDGE