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ELCPartially AllowedNot stated in the judgment (ELC, Kakamega)· [2016] KEELC 14 (KLR)

Gabriel S. Imbali & 2 others v John S. J.Chabuga [2016] KEELC 14 (KLR)

Environment and Land Court
19 December 2016
2,987 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a defendant's attempt to strike out a land dispute and granted the worshippers an injunction limited strictly to two named plots.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Kakamega (A.K. Kaniaru, J) determined a preliminary objection, a defendant's application dated 11/8/2016 and a plaintiffs' application dated 3/8/2016 in a dispute over rights of worship at plots Nos. 1 and 2, Chekalini Township. The plaintiffs, claiming to be officials of African Divine Church, sought to restrain the defendant and his followers from interfering with worship on the plots, having earlier obtained an exparte restraining order from ELC Kisii. The defendant filed a preliminary objection and an application seeking to set aside or stay the Kisii orders and to strike out the entire suit, alleging among other things non-compliance with representative-suit procedure, lack of locus standi, and a suit premised on untruths. The court dismissed the preliminary objection, holding that a preliminary objection raises only a pure point of law and cannot lie where facts are disputed or where a discretionary remedy such as an injunction is sought; it also noted that leave is no longer required for representative suits and that striking out would deny the plaintiffs a hearing on the merits. The defendant's application was dismissed as academic because the Kisii exparte order had lapsed and was 'non-existent', and the striking-out prayer had already been rejected. The plaintiffs' unopposed application was allowed: a temporary injunction was granted, but confined to Chekalini Township Plots 1 and 2 and expressly excluding unspecified 'other worship places', the court stressing that court orders must be clear and specific. Costs of the applications were awarded to the plaintiffs, with costs of the plaintiffs' application in the cause.

Key legal issues

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01

Validity of the preliminary objection

Holding

Dismissed: the defendant disputed material facts and the suit sought a discretionary remedy (permanent injunction), so a preliminary objection was incompetent; leave is no longer needed for representative suits.

Reasoning

The court applied the Mukisa Biscuits definition of a preliminary objection as a pure point of law argued on assumed facts. Since the defendant disputed all material facts, facts would have to be ascertained, disqualifying the objection. Further, the relief sought was a discretionary injunction, and the leave point had been abandoned. Striking out would deny the plaintiffs a hearing on the merits, a fundamental right per Court of Appeal authority.

p. 4
02

Defendant's application dated 11/8/2016 (set aside/stay Kisii orders; strike out suit)

Holding

Dismissed: the Kisii exparte order had expired and could not be set aside or stayed; the striking-out prayer had already been rejected when considering the preliminary objection.

Reasoning

The Kisii order of 5/8/2016 expired without extension and thus no longer existed; setting aside or staying a non-existent order would be academic. The striking-out prayer was identical to the one in the preliminary objection and failed for the same reasons. With its crucial prayers rejected, the application could not stand and was dismissed with costs.

p. 5
03

Plaintiffs' application dated 3/8/2016 for temporary injunction

Holding

Allowed: prayer 3 granted but limited to Chekalini Township Plots 1 and 2; prayer 4 granted only for enforcement of prayer 3; costs in the cause.

Reasoning

The defendant never responded to the application and addressed it hardly at all in submissions, so it lacked a credible challenge. However, the court declined to grant the injunction in respect of 'any other worship places established by the plaintiffs' because those places were unspecified; court orders must be clear and specific. The injunction was therefore confined to Plots 1 and 2 pending hearing of the suit.

p. 5

Legal principles established

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  • A preliminary objection raises a pure point of law and cannot be raised where facts are contested or where judicial discretion is involved
  • Leave of court is no longer required to file representative suits
  • A party cannot seek the same order (striking out) twice in the same suit in two different applications
  • A court order should not issue over unspecified places; clarity and specificity are essential
  • A court will not entertain prayers that are academic because the order challenged has lapsed

Court orders

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  1. 1.Preliminary objection dated 11/8/2016 dismissed with costs
  2. 2.Defendant's application dated 11/8/2016 dismissed with costs
  3. 3.Plaintiffs' application dated 3/8/2016 allowed: prayer 3 granted but limited to Land Parcel No. Chekalini Township Plots 1 and 2 only, not any other place
  4. 4.Prayer 4 granted to ensure enforcement of prayer 3 (not for enforcement of prayer 2)
  5. 5.Costs of the plaintiffs' application to be in the cause
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes on land parcels Nos. Chekalini Township Plots 1 and 2 (matter referred from ELC Kisii)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gabriel S. Imbali & 2 others v John S. J.Chabuga [2016] KEELC 14 (KLR)", Case Analysis (2016). Not stated in the judgment (ELC, Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/14/eng@2016-12-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.