John Meeme Ngeera v Joseph Mwithali Muchiri, Joseph Mwithali Muchiri, Peter Mutura Kaberia, Janet Nkatha Mururu, Amina Sheikh Abdulkadir, Khaalif Sheikh Mohammed & Christopher Kimathi M'mwereria [2016] KEELC 848 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MERU

E&L CASE NO. 291 OF 2013

JOHN MEEME NGEERA.................................................PLAINTIFF/APPLICANT

VERSUS

JOSEPH MWITHALI MUCHIRI..........................1ST DEFENDANT/RESPONDENT

PETER MUTURA KABERIA...............................2ND DEFENDANT/RESPONDENT

JANET NKATHA MURURU................................3RD DEFENDANT/RESPONDENT

AMINA  SHEIKH ABDULKADIR.......................4TH DEFENDANT/RESPONDENT

KHAALIF SHEIKH MOHAMMED ….................5TH  DEFENDANT/RESPONDENT

CHRISTOPHER KIMATHI M'MWERERIA........6TH   DEFENDANT/RESPONDENT

R U L I N G

This ruling concerns  a Notice of Preliminary Objection on a Point of Law dated 23rd May, 2014 and filed by the defendants.

The Preliminary Objection  states:-

“TAKE NOTICE that  when the Plaintiff's suit and/or application comes for hearing on 29th May, 2014 or at any other given time, the Defendant's  Counsel shall raise a Preliminary Objection on points of Law with a view of having  the plaintiff's suit and/or application be struck out on grounds that:-

THATthe Plaintiff's suit and/or application  offend Section 29(1)(a&b) and Section 30(1) of the Land Adjudication  Act   CAP 284 Laws of Kenya.

THATthe plaintiff's suit is fatally defective and an abuse of the Court process.

THATthe purported Consent dated 23rd May, 2013 applied in filing this instant suit is defective in its form and nature, hence , an  abuse of the Court Process.

Parties elected to have the Preliminary Objection canvased by way of Written Submission. However, despite having been indulged with several chances to so so, the defendants did  not file Written Submissions.

In  his short  Submissions the plaintiff submitted that this Preliminary Objection was not based on pure points of law as its grounds would invite arguments which could only be ascertained through tendering of evidence. He proffered the case of MUKISA BISCUITS CO LTD Versus WEST END DISTRIBUTORS [1969] EA  696. Regarding his assertion that the suit was properly in Court,  proffered the case of METHODIST  CHURCH OF KENYA REGISTERED  TRUSTEES VersusHON. MITHIKA LINTURI & OTHERS , HCCC NO 37 OF 2010 AT MERU.

I do agree with the plaintiff that the Preliminary Objection does not raise pure points of law. On ground 1 , it would be necessary to prove how the suit offends Sections 29(1) (a&b) and Section 30(1) of the Land Adjudication Act.  In ground 2, the broad claim that the suit is fatally defective and an abuse of the Court process veritably invites arguments . Ground 3 that the Consent dated 23rd May, 2013  is defective in its form and  nature and is an abuse of the Court process    is  nebulous and invites arguments.

For the above reasons I find that the Preliminary Objection is not meritorious . I dismiss it.

Costs shall be in the cause.

It is so ordered.

Delivered in open Court at Meru this 12th day of April, 2016 in the presence of:-

Daniel /Lilian

Manases Kariuki for Plaintiff

Defendants or their  Advocates Absent.

P.M. NJOROGE

JUDGE