Fredrick Kathanzu Kavuthi t/a Kanyuni Constructors & James Kyalo t/a Second Try Construction Company v Al-Haiee Investments Limtied [2019] KEELC 3043 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT

AT MILIMANI

ELC NO. 1264 OF 2013 (OS)

FREDRICK KATHANZU KAVUTHI T/A KANYUNI CONSTRUCTORS....1ST PLAINTIFF

JAMES KYALO T/A SECOND TRY CONSTRUCTION COMPANY...........2ND PLAINTIFF

=VERSUS=

AL-HAIEE INVESTMENTS LIMTIED................................................................DEFENDANT

RULING

1. This is a Ruling in respect of a Notice of Preliminary Objection dated 12th November, 2018 and file3d in Court on 13th November, 2018. The Preliminary Objection is premised on the three grounds which are as follows:-

1. That a claim for adverse possession is a factual issue and given that a Court of competent jurisdiction has already made a factual finding to the effect that the Plaintiffs were not in actual physical possession of the suit property, the entire suit, therefore, lacks merit and should be struck out with costs to the Defendant.

2. That neither the Plaintiffs nor the Interested Party can invoke the jurisdiction of Court by originating summons, to either challenge the Defendant’s title to the suit property and/or make a claim for an alleged unpaid cost of constructing perimeter wall.

3. The suit is an abuse of the process of Court and should be struck out with costs.

2. On 20th November, 2018 the Court directed the Preliminary Objection be disposed of by way of Written Submissions. The Defendant filed its submissions on 7th December, 2018 and the Plaintiffs filed theirs on 20th February, 2019.

3. I have considered the submissions by the Defendant as well as the submissions by the Plaintiffs. The Defendant argues that a Court of competent jurisdiction has made a factual finding that the Plaintiffs are not in physical occupation of the suit property and that therefore there is no need for this case to remain pending in Court for hearing. The Defendant therefore argues that the suit should be struck out with costs as the same is an abuse of the process of the Court.

4. The Plaintiffs have opposed the Defendant’s Preliminary Objection on the ground that what the Defendant has raised does not amount to a Preliminary Objection. In determining whether the issues raised are Preliminary points which should lead to striking out of the suit, a brief background of the suit is necessary.

5. The Plaintiffs herein have brought this suit by way of Originating Summons seeking to be registered as owners of the suit property by way of adverse possession. The Defendant herein is the registered owner of L.R No. 209/1207/1 (suit property). On or about 20th September, 1995, the Defendant herein contracted the 1st Plaintiff to construct an 8 foot high perimeter wall around the suit property. The work was to be completed in about 8 weeks time. As the 1st Plaintiff had no equipment or capacity to complete the job within the period given, he contracted the 2nd Plaintiff to come in and assist. The two Plaintiffs completed the job as per agreement.

6. The Defendant’s representatives could however not pay them. The Plaintiffs remained in the suit property hopping that the Defendant will show up. This never happened. The Plaintiffs moved out of the suit property. They however occasionally used to visit the suit property to ascertain whether the Defendants officers had surfaced. When they realized that the officials of the Defendant were nowhere to be seen, they moved back to the suit property in or around 1997 where they have been operating their construction work until they decided to file this suit claiming adverse possession.

7. In dealing with one of the application in which the Plaintiffs were seeking injunctive reliefs stopping the Defendant from evicting them, Lady Justice Gitumbi delivered a ruling disallowing the application by the Plaintiffs on the ground that the Plaintiffs were not in occupation of the suit property. Having set out the background, the issue which arises for determination is whether what the Defendant has raised amounts to a Preliminary Objection or not.

8. In the case ofMukisa Biscuit Manufacturing Company Limited Vs West End Distributors Limited [1969] EA 696 Law JA stated as follows:-

“So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a Preliminary point may dispose of the suit.”

9. In  the Mukisa Biscuit Manufacturing Company Limited (Supra) Charles Newbold P. stated as follows:-

“A Preliminary Objection is in the nature of what used to be 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 fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

10. It is clear that the Defendant is seeking to have the Plaintiffs suit struck out on the ground that a Court has made a factual finding that they are not in possession. This finding was made at interlocutory stage. This was not a final finding. This factual finding cannot be taken as a basis for striking out the Plaintiffs suit. There are facts to be ascertained whether the Plaintiffs were in possession for the 12 years statutory period. This can only come out of the evidence be it oral or affidavit evidence. I therefore find that what the Defendant has raised does not amount to a Preliminary point. I proceed to dismiss the Preliminary Objection with costs to the Plaintiffs.

It is so ordered.

Dated, Signed and delivered at Nairobion this 9thday of May, 2019.

E.O.OBAGA

JUDGE

In the presence of Mr. Omuga for Defendant/Applicant.

M/s Mbirwe for Mr. Kamau for Plaintiff/Respondent

Court Assistant Hilda