John Kiburi v Charles Mundia Ngunjiri [2021] KEELC 2630 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MILIMANI

ELC CASE NO. 212 OF 2018

JOHN KIBURI...........................................................................................APPLICANT

VERSUS

CHARLES MUNDIA NGUNJIRI..........................................................RESPONDENT

RULING

1. This is a Ruling in respect of a preliminary objection raised against the Applicant’s application dated 3rd September 2020. The Appellant/Respondent had filed an application in which he sought leave to file an appeal out of time. The Respondent also sought stay of execution of the ruling which was being appealed from. The Applicant’s application was allowed on 14th May 2020. The time for filing memorandum of Appeal was extended by 14 days. There was also stay of execution granted.

2. The Respondent proceeded to file a Memorandum of Appeal on 27th May 2020 but did not serve the same in time as the Appeal had not been assigned a number. The Respondent exchanged emails with the Deputy Registrar of this Court which culminated in assignment of the Appeal number. Before the Memorandum of Appeal could be served upon the Applicant, the Applicant filed a notice of motion which sought certain mandatory orders. This application was made on the premises that the Respondent had failed to file a Memorandum of Appeal within the 14 days extension which had been granted.

3. When the Respondent was served with the application by the Applicant, the Respondent filed a Notice of Preliminary Objection on the ground that there is already an appeal filed; that the suit herein is spent in view of the Appeal which has been filed; that no injunction can be granted based on a miscellaneous application and that the application is an abuse of the process of court. The Respondent also filed a replying affidavit in opposition to the Applicant’s application.

4. The Applicant contends that as the Respondent did not file a Memorandum of Appeal within the time given, the Respondent has clearly shown that he had no intention to prefer any appeal to this court. The Applicant argues that the Respondent should be restrained from bringing containers into the suit property and that the Respondent is benefitting from the suit property which he alleges is a road reserve .

5. In his replying affidavit sworn on 17th October 2020, the Respondent states that he filed the Appeal within he time given by the court and that failure to serve the same was due to delay in the Appeal being assigned a number as it had been filed through the court’s e-mail filing system following the outbreak of Covid 19.

6. The Respondent further argues that no injunction can be granted based on a miscellaneous application and that therefore the application is an abuse of the process of court.

7. The parties were directed to file written submissions in respect of both the preliminary objection and the application itself. The Applicant filed his submissions dated 11th December 2020. The Respondent filed his submissions dated 14th April 2021. I have considered both the preliminary objection and the Application as well as the submissions filed. I wish first to deal with the preliminary objection.

8. A preliminary objection was well defined in the case of Mukisa Biscuits Manufacturing Co.Ltd Vs West End Distributors (1969) EA 696 at 700 where Law JA stated as follows:-

“…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. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

9. In the same case ofMukisa Biscuits (supra), Sir Charles Newbold P. added at page 701:

“A preliminary objection is in the nature of what used to be a 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. In the instant case, the Respondent is contending that there is an appeal which has already been filed. This is not a pure point of law and in any case there has to be ascertainment of the facts which the Respondent alleges such as whether the Memorandum of Appeal was filed on 27th May 2020 as he alleges and whether non service was due to delay in the Appeal being assigned a number as alleged.

11. The Respondent has filed his application within  the Appeal which was ordered to be filed within 14 days from 14th May 2020. The Application has not been brought under Misc.212 of 2018 which was spent the moment the ruling of 14th May 2020 was delivered. Under Order 42 Rule 6(6) of the Civil Procedure Rules, a party is at liberty to apply for injunction as long as the procedure for filing an appeal to this court has been complied with. In the instant case, there is an appeal which has already been filed. What is remaining is the preparation of the record of appeal after which directions can be given. It is therefore clear that the preliminary objection has no merits and it does not qualify to be called a preliminary objection.

12. On the issue of the application, the only issue for determination is whether the Applicant has made out a case for grant of the orders sought. The Applicant wants orders of eviction and removal of the Respondent’s containers from the suit property. The orders were sought on the basis that there was no Memorandum of Appeal filed. It has now turned out that there was an appeal filed in accordance with the timelines given.

13. The Applicant in her submissions has contended that the Respondent did not comply with Rule 17 of the Court of Appeal Rules. This is an appeal to the Environment and Land Court and the Court of Appeal rules do not apply. There is already a stay of execution of the lower court’s ruling pending hearing and determination of the Appeal. There is therefore no way the Applicant can come to seek eviction orders or any other preservartory orders. I find no merit in the Applicant’s application which is hereby dismissed. As the Respondent has lost his preliminary objection and the Applicant has lost his application, let each party bear their own costs.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 10TH DAY OF JUNE 2021.

E. O. OBAGA

JUDGE

In the Virtual presence of:-

Mr Kariuki for Appellant/Respondent

M/s Ndirangu for Respondent/Applicant

Court Assistant: Okumu

E. O. OBAGA

JUDGE