Tebere Concrete Company Limited v Dickson Macharia Gichuhi [2019] KEELC 2461 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KERUGOYA

ELC CASE NO. 70 OF 2017

(FORMERLY ELC CASE NO. 14 OF 2016- EMBU)

TEBERE CONCRETE COMPANY LIMITED..........................................PLAINTIFF

VERSUS

DICKSON MACHARIA GICHUHI..........................................................DEFENDANT

RULING

The plaintiff filed the instant suit against the defendant for a declaration that he is the owner of P/NO. 1617 Wachoro. The plaintiff also seeks an order requiring the defendant to remove the perimeter fence on his property and an injunction against the defendant, his agents and/or servants from entering, remaining in or interfering with his quiet possession of the suit land.

The defendant filed their defence and raised a Preliminary Objection on the following grounds:

(a) Objecting to the firm of Morris Njage & Co. Advocates from acting for the plaintiff while he was the defendant’s previous advocate who drew the sale agreement between the plaintiff and the defendant.

(b) That the suit is defective and ought to be dismissed.

(c) The plaintiff has no capacity to bring this case.

(d) The law of sub-judice applies.

The issues that comment for determination in the defendant’s objection are twofold:

(1)Representation and

(2) Sub-judice/Defective suit.

On the first issue, the advocate who was being objected to filed a Notice to cease acting and a new firm of Advocates filed a Notice of change. That issue is therefore deemed as a non-issue now.

The second issue is where the defendant claims that no authority or consent was obtained as per Section 30 of the Land Adjudication Act and therefore the suit is defective and that the plaintiff lacks capacity to sue.

It has been held again and again that a Preliminary Objection is raised on pure points of law and undisputed facts. However, where facts are disputed, then the parties are called upon to adduce evidence to proof or disprove the same. In such a case, the law demand that the matter proceeds for hearing.

In Republic Vs Attorney General (Suing for and on behalf of the Ministry of Lands) & 2 others Ex-parte South and Central (Thika) Investments Limited & another (2016) e K.L.R, G.V. Odunga J. addressing on the same stated as follows:

“In my view, Preliminary Objections which have the effect of inviting the Court to make a determination on conflicting factual averments ought not be entertained. Where a party intends to rely on certain documents, he can only be permitted to do so in arguing the Preliminary Objection where the factual contents of the said documents are not in dispute. However, where the same are disputed, the application or the suit ought to be allowed to proceed in the normal manner as to raise a Preliminary Objection based thereon not only leads to confusion but unnecessarily prolongs proceedings”.

The same sentiments were echoed by Munyao Sila J. in the case of Lemitei Ole Koros & another Vs Attorney General & 3 others (2016) e K.L.R where he stated as follows:

“Where facts are not contested, the Court is able to make a determination of law on the Preliminary Objection, but where facts are in contest, then automatically, the issue falls out of the ambit of a Preliminary Objection. It would be improper for a Court to make a contested determination of facts within a Preliminary Objection”.

The issue being taken by the defendant as a Preliminary Objection has to wait since evidence has to be adduced by the party required in law to produce the same at the hearing. In the final analysis, the points raised as Preliminary Objection are not upheld and the same is dismissed with costs.

READ, DELIVERED and SIGNED in open Court at Kerugoya this 28th day of June, 2019.

E.C. CHERONO

ELC JUDGE

28TH JUNE, 2019

In the presence of:

1. M/S Githaiga holding brief for Kahuthu for Defendant

2. Ms Muthoni holding brief for J. Ndana for Plaintiff

3. Court clerk - Mbogo