George Otieno Gache & another v Judith Akinyi Bonyo & 5 others [2019] KECA 430 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated a land suit struck out on a preliminary objection, confirming objections must rest on pure points of law, not disputed facts.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the grounds stated in the Notice of Preliminary Objection raise pure points of law
- 2.Whether the impugned ruling was grounded on a point of law or on disputed facts
- 3.Whether the learned judge erred in striking out the appellants' suit on a preliminary objection by delving into contested facts and the merits of the claim
- 4.Whether the issues of legal capacity and alleged defects in the plaint were curable and should have been addressed otherwise than by summary striking out
Key legal issues
#Whether the preliminary objection raised pure points of law
The grounds in the notice of preliminary objection depended on contested and disputed facts - the validity of the 1991 letter of allotment, the pleaded fraud, and the capacity of the appellants to sue - all of which require trial. The objection therefore did not raise pure points of law, and the judge erred in upholding it.
The Court restated the Mukisa Biscuit definition of a preliminary objection as a pure point of law argued on the assumption that all pleaded facts are correct. Here the validity of the allotment letter, the alleged fraud and the legal capacity of the parties were all contested. Determining them required ascertaining facts and assessing evidence at trial, including cross-examination, so the objection was improperly entertained.
Whether the judge erred by delving into the merits when determining the preliminary objection
By analysing the letter of allotment and the merits of the ownership claim, the judge embarked on the merits of the case and made findings on disputed facts, which is an error of law and violates the rule that a party cannot be condemned unheard.
The judge examined the discrepancy between the plot numbers in the allotment letter and the certificate of title, and weighed the respondents' evidence on the non-existence of the church in 1991. Whether the differing numbers referred to the same parcel, and the fraud allegations, could only be resolved at trial. Expressing opinions on the merits also prejudices the fair trial of the reinstated suit.
Whether the plaint disclosed no cause of action
Whether the suit discloses a cause of action is an arguable point that cannot be summarily determined by way of preliminary objection; the plaint pleaded ownership and infringement of property rights which require proof at trial.
Relying on A.B.C. Laminart and Attorney General v Oluoch, the Court held that a cause of action is a bundle of facts which, if traversed, the plaintiff must prove; on an application of that kind the pleaded facts are assumed true. The plaint averred ownership of the suit property and infringement of property rights, facts that must be proved at trial and cannot be adjudicated on a preliminary objection.
Whether the defect of not stating the capacity in which the 1st appellant sued was fatal
The learned judge erred in striking out the suit without considering the guiding principles on amendment of pleadings; defects of that nature are curable by amendment, and the overriding objective under Sections 1A, 1B and 3B of the Civil Procedure Act and Article 159 of the Constitution favours sustaining suits over summary dismissal.
The Court invoked Central Kenya Limited v Trust Bank to the effect that amendments to pleadings should be freely allowed at any stage provided no prejudice incapable of compensation in costs results. The judge had treated the capacity issue as beyond curative substantive justice, which was erroneous; the suit should not have been driven from the judgment seat on that basis without considering amendment.
Legal principles established
#- A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion
- Fraud cannot be proved or disproved summarily but only by way of trial
- A preliminary objection must be prosecuted as a stand-alone objection on pure points of law and cannot be combined with a hearing on disputed and contested facts
- The power to strike out pleadings must be exercised sparingly and without embarking on the merits of the case, which are reserved for the trial judge
Court orders
#- 1.The appeal is allowed
- 2.The ruling and orders made on 12th November 2015 are set aside in entirety
- 3.The appellants' suit/plaint filed in HCCC No. 3 of 2014 is reinstated
- 4.The suit shall proceed for trial
- 5.Each party to bear their own costs in the court below and in this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Kisumu
- Land Case No. 3 of 2014
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Environment and Land Court (Article 164 of the Constitution; the judgment does not state the appellate provision expressly)
Relief refused
#Reversal of costs before the trial court
The Court reinstated the suit but declined to disturb the costs order in the court below, instead directing each party to bear their own costs both below and on appeal
Costs
Each party to bear their own costs in the court below and in this appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
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.
A preliminary objection should be prosecuted as a stand- alone objection to be determined on its own founded on pure points of law. Combining a hearing on preliminary objection with a hearing on disputed and contested facts results negates the merits and purpose of a preliminary objection.
It is well settled that fraud cannot be proved or disproved summarily but by way of trial.
the power to strike out a pleading which ends in driving a party from the judgment seat should be used very sparingly and only in cases where the pleading is shown to be clearly untenable.
The appeal has merit and is hereby allowed. We set aside in entirety the ruling and orders made on 12 th November 2015. We reinstate the appellants suit/plaint filed in HCCC No. 3 of 2014. We direct that the suit proceeds for trial. Each party to bear their own costs in the court below and in this appeal.
Issues in the judgment
#The judgment refers to 'the legal capacity of the 1 st and 2nd respondents to file the suit' in paragraph 17 where the context indicates the appellants were meant, an apparent typographical error
The memorandum of appeal identifies the authorization document as signed by 'the Board of Directors of Covenant of Peace Church, the 2 nd respondent herein' although the Church is the 2nd appellant, an apparent drafting error
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Otieno Gache & another v Judith Akinyi Bonyo & 5 others [2019] KECA 430 (KLR)", Case Analysis (2019). Civil Appeal No. 15 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/430/eng@2019-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.