Fredrick Idiama Emojong v Seferio Mangeni Manyuru, Dina Achieng Nyongesa & Lydia Bentah Tatah Mangeni [2017] KEELC 3598 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 7 OF  2013.

FREDRICK IDIAMA EMOJONG………........…………………PLAINTIFF

VERSUS

SEFERIO  MANGENI  MANYURU

DINA  ACHIENG  NYONGESA

LYDIA  BENTAH TATAH MANGENI………….………… DEFENDANTS.

R U L I N G.

1. What  is before me is a preliminary objection premised on two propositions viz:

i. The suit  is bad in law in SITU

ii. The applicant/plaintiff  claim to the suit  land is incapable of being granted and contrary to the express provisions of statutory law – being  the Land Control Act.

The notice of the preliminary objection was filed here on 18/1/2016. It is clear the defendants  want the plaintiff’s suit dismissed.

2. On 19/1/2016, it  was agreed that the preliminary objection be canvassed  by way of written submissions.  Subsequently, the defendants submissions  were  filed on 25/1/2016. The plaintiff’s  submissions were  filed a year  later, that is on 19/12/2016.

3. In the suit, the plaintiff – FREDRICK IDIAMA EMOJONG -  complains that the defendants  - SEFERIO MANGENI MANYORU, DINA  ACHIENG NYONGESA and LYDIA  BENTA TATAH MANGENI – have  fraudulently  and/or  illegally acquired his land parcel NO.L.R SOUTH  TSO/ANGOROMO/7331 and subdivided it into parcel NO’S  L.R. SOUTH TESO/ANGOROMO/8424, L.R. SOUTH TESO/ ANGOROM/8425, L.R. SOUTH TESO/ANGOROMO/8426 and  SOUTH TESO/ANGOROMO/8427.  He asks, interalia, for  reversal of the whole process and cancellation of the resultant titles. The defendants have not filed a defence.

4. The thrust of the defendants objection is as follows. The issue of who is the registered proprietor of the suit land was settled vide ruling in BUSIA H C P & A NO. 3 of 2000 and that the plaintiffs claim is based on purchase. That purchase was allegedly from 1st defendant.  According to defendants, that should have been followed  by procuration of the necessary consent from Land Control Board. And that  was never done, the whole transaction thereforewas vitiated and any money paid by the plaintiff became  recoverable as a civil debt.

5. The plaintiff on the other had alleged that the objection is misplaced and incompetent since the defendants averments require tendering  of evidence.  It was said to fall short of the requirement for  a proper preliminary objection as set out in the case of MUKISA BISCUITS MANUFACTURING  LTD VS  WEST END DISTRIBUTORS LTD [1969] E.A 696. According to the plaintiff a preliminary objection should be on a pure point of law, should not require production of evidence, should be able to dispose of the entire suit, and should not be mischievous or  vexatious  or meant simply to buy time.

6. I have  considered the suit  as filed and the rival submissions.  As l pointed out earlier, the defendants have not filed a defence.  If a preliminary objection is one meant to dispose of the entire  suit in lamine, it  is first pleaded  in the defence. And while pleading  it, an  intimation is given that the point pleaded would later be raised as preliminary objection. Failure to file a defence  led to omission of this crucial step.  And it is a crucial step because the defence affords the court the opportunity to know which facts are being controverted or admitted.

7. It should  be appreciated that a preliminary objection  can only be raised where facts are  uncontested and/or  admitted (see MUKISA BISCUIT’S  case supra).  It cannot  be raised  where facts  have  to be ascertained or where what is  sought involves the exercise of judicial discretion (see also MUIRURI VS KIMEMIA [2002]  2 KLR 677, NJOYA & 6 others VS ATTORNEY GENERAL & Another [2004] 1 KLR 232, GITAU  VS THUO  & 2 others [2009] KLR 86, and REPUBLIC VS PUBLIC PROCUREMENT  ADMINISTRATIVE REVIEW  BOARD & ANOTHER Exparte  SLEX  SIS TEMI  Integrati [2008] KLR 728 ).

8. As  regards  the requirement to  plead the objection in the defence, the  decided  case of ACHOLA & ANOTHER VS  HONGO & ANOTHER  [2004] KLR  462, is illustrative.  In the case the appellants  filed a case against the respondents alleging, inter alia, the  tort of fraudulent  misrepresentation.  The  second respondent,  the Municipal Council  of Kisumu,  which was second defendant  in the High court, raised  a preliminary objection  that the suit  against it was time-barred since  the alleged tort was said to have been committed in 1994 and  the original  plaint  was only filed in 1997. A defence  previously filed by 2nd Respondent had  neither pleaded the defence or limitation nor specifically pleaded that  the claim was time-barred under the Public Authorities Limitation Act.  The High court nevertheless allowed  the issue of limitation , upheld the preliminary objection and thereby  terminated the appellants claim. The appellant appealed.

9. The Court of Appeal held, interalia, that the 2nd respondent having failed to plead Limitation in this defence, was not entitled to rely on that issue and base a preliminary objection on it.

10. As pointed out earlier, a defence opens the eyes  of the court to see the contested, uncontested and/or  admitted facts. When the  preliminary objection is raised later, it is then easy to see what facts it is premised on and whether those facts are contested or not.  The   defendants were wrong in plunging headlong into the preliminary objection without first filing the defence.

11. But even if one were to overlook this, it  seems clear to me that the   truth of the propositions made to support the objection is not  axiomatic.  One assertion is that the issue of ownership was settled  vide ruling  in BUSIA HC  P&A NO. 3  of 2000.  In that  ruling, the 1st defendant was the objector  and the plaintiff herein was the     interested party. This is what the learned judge (F.TUIYOTT, J)  said  about the transaction that  led to alleged ownership:

‘’  The court  restrains  itself from examining the sale transaction  entered into between the objector and  the  interested party…’’

Simply  put, the court declined to delve into the  issue of ownership.  And it  did so because that was the preserve of Environment and  Land court.  It is not a settled  fact therefore that  that ruling   addressed ownership.  It  seems to me that it was addressing the `  issue of  exclusion of the objector  from a grant issued earlier.

12. The other assertion is that provisions of Land Control Act were not   complied with. This is particularly so regarding consent. One thing is clear:  The plaintiff pleads he has title to the suit land.  A copy  of   that title is even in court records. When one shows such title, there is a rebuttable presumption that  it  was obtained legally.  Anybody  alleging that some crucial  legal steps  were omitted must avail evidence to prove it. When  you raise the issue as a preliminary objection, you are excluding such evidence from court.  In the  specific  circumstances of this case the defendants  wants the court to accept as gospel truth their allegation that the plaintiff obtained the title  without the necessary Land Control Board consent.  It is not    that easy. The defendants  need to  allege and prove. The plaintiff is  generally right in arguing that what is alleged require production of  evidence.

13.  The position  is therefore clear that whether one is looking at the objection from a legal perspective or from the factual premise on which it is based, one is bound  to come to the conclusion that it  cannot pass muster.

14.  It is for these reasons that the objection is hereby rejected and  dismissed with costs.

A. K. KANIARU,

JUDGE.

DATED AND DELIVERED ON 25TH DAY OF  JANUARY, 2017.

IN THE PRESENCE OF ;

PLAINTIFF…………………………………………

1ST DEFENDANT…………………………………

2ND DEFENDANT…………………………………

3RD DEFENDANT…………………………………

J U D G E.