Kaloleni Muslim Mosque Committee & Kisumu Muslim Association v Seventh Day Adventist Limited & National Land Commission [2021] KEELC 4485 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC NO. 25 OF 2018

KALOLENI MUSLIM MOSQUE COMMITTEE.....................1ST PLAINTIFF

KISUMU MUSLIM ASSOCIATION..........................................2ND PLAINTIFF

VERSUS

SEVENTH DAY ADVENTIST LIMITED...............................1ST DEFENDANT

NATIONAL LAND COMMISSION........................................2ND DEFENDANT

RULING

The 1st defendant has filed a Notice of Preliminary Objection dated 9th November, 2020 that the firm of Ms. Amondi & Company Advocates continued representation of the plaintiffs in this matter is conflicted by virtue of their representation of the defendants in Environment and Land court at Kisumu Case Number 806 of 2015 S.D.A Church (E.A) Limited – Vs – Caleb Ouma & 4 Others and subsequent application number 151 of 2019 in the court of appeal in Kisumu.  He states that in both cases Amondi & Company Advocates clients seek title ownership and possession of land Kisumu Municipality Block/40.

I have considered the rival submission and do find that this Preliminary Objection requires a lot of factual explanation and therefore it does not meet the threshold of a Preliminary Objection.  As opposed to a Preliminary Objection, the 1st defendant ought to have made an application to bar the firm of Amondi & Company Advocates to appear for the plaintiff.  Conflict of interest cannot be brought out by way of preliminary objection but an application supported by affidavit.  The Preliminary Objection is clearly misconceived and goes against the decision in Mukisa Biscuits Manufacturing Limited – Vs – West End Distributors 1969 (E.A) 696 where their Lordship observed: -

“…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 a contract giving rise to the suit to refer the dispute to arbitration.”

In the case of Serve in Love Africa (SILA) Trust –Vs- David Kipsang Kipyego 2017 eKLR, cited by the 1st defendant, this court was dealing with an application to bar an advocate from representing a client but not a Preliminary Objection.

It is my view that an application to bar an advocate from representing a party cannot be dealt with by way of Preliminary Objection because it involves facts that need to be verified.  Where a party asserts that conflict of interest exists, there must be sufficient evidence to demonstrate that the conflict exists. I do find that the Preliminary Objection has no basis.  The same is dismissed with costs.

DATED AND DELIVERED THIS 28th DAY OF JANUARY, 2021.

A. O. OMBWAYO

ENVIRONMENT & LAND - JUDGE

This RULING has been delivered to the parties by electronic mail due to measures restricting court operations due to the COVID-19 pandemic and in the light of the directions issued by his Lordship, the Chief Justice on 15th March 2019.

A. O. OMBWAYO

ENVIRONMENT & LAND – JUDGE