Daykio Plantations Limited v National Bank of Kenya Limited & 2 others [2019] KEELC 37 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to throw out a land dispute, ruling that beneficial ownership claims need a full hearing with evidence, not a shortcut objection.
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 objection raised by the 1st Respondent qualifies as a Preliminary Objection in the Mukisa Biscuit sense
- 2.Whether the Applicant lacks locus standi to institute the suit and application
- 3.Whether the lack of locus standi can be determined preliminarily or requires ascertainment of facts through evidence
Key legal issues
#Whether the 1st Respondent's objection qualifies as a preliminary objection
The Court found that lack of locus standi can dispose of the matter preliminarily without ascertaining facts, and the objection fits the Mukisa Biscuit description of a preliminary objection.
Applying the Mukisa Biscuit test, the Court accepted that locus standi is a point of law going to the heart of the suit such that, if upheld, it would end the matter without ascertaining facts from outside the pleadings. On that footing the objection was properly characterised as a preliminary objection. The analysis then moved to whether the objection could succeed on its merits given the nature of the Applicant's claim.
Whether the Applicant has locus standi given its claimed beneficial interest in the suit property
The objection was dismissed because the Applicant's claimed beneficial interest and the alleged resulting trust can only be established through evidence at the hearing, not on a preliminary objection.
The Applicant claimed beneficial ownership premised on a trust, alleging it mistakenly transferred title to the 2nd Respondent who holds it as a resulting trustee. Whether the Applicant has such proprietary interest requires interrogation of evidence and ascertainment of facts. Determining that at this stage would effectively decide the whole suit via a preliminary objection, which would be draconian and would deny the Applicant the opportunity to ventilate its case. The objection therefore fails.
Whether the preliminary objection was sufficiently particularised
The Applicant contended, citing Bashir Haji Abdullahi, that the objection was bare and insufficiently particularised, though the Court ultimately decided the matter on the ground that facts required ascertainment.
The Applicant submitted that the notice lacked sufficient particularity and characteristic detail, making it impossible to prepare a response, and that a preliminary objection cannot be sustained where facts are contested. The Court did not squarely rest its decision on this ground, finding instead that although the locus standi point was properly raised, it required factual ascertainment and thus could not succeed as framed.
Legal principles established
#- A preliminary objection consists of a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained
- Although lack of locus standi is capable of disposing of a matter preliminarily, where the claim is founded on beneficial interest/trust, the existence of such interest is a matter of evidence that cannot be determined on a preliminary objection
Court orders
#- 1.The 1st Respondent's Preliminary Objection dated 16th August 2018 is dismissed entirely
- 2.Costs to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit property (specific enabling provision not cited in the judgment excerpt)
Relief refused
#The 1st Respondent's prayer that the Applicant's application and suit be struck out for lack of locus standi and as an abuse of process
Whether the Applicant holds beneficial interest in the suit property is a question of fact requiring evidence at the hearing, not determinable via a preliminary objection
Costs
The Preliminary Objection is dismissed entirely with costs being in the cause
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.
the upshot of the foregoing is that the 1st Respondent’s Preliminary Objection is not merited and the same is dismissed entirely with costs being in the cause.
It is so ordered.
the instant issue while it goes to the Jurisdiction of this Court, certain facts must be ascertained and therefore the issue at hand cannot be determined via a Preliminary Objection, as the Court will have to take evidence to determine the same
A preliminary objection raises a pure point to 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
it would be imprudent to dismiss the Applicant’s Application as the suit ought to be heard and facts ascertained to arrive at a just determination.
Issues in the judgment
#The names of the parties and the case number are not stated anywhere in the judgment excerpt; only the role designations (Applicant, 1st, 2nd and 3rd Respondents) appear
The judgment refers to the parties inconsistently, at times as 'Plaintiff' and 'Defendants' and at other times as 'Applicant' and 'Respondents', though the ruling concerns an 'Application' whose date and substance are not set out
The court does not state the neutral citation or the suit's case number in the excerpt
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daykio Plantations Limited v National Bank of Kenya Limited & 2 others [2019] KEELC 37 (KLR)", Case Analysis (2019). not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/37/eng@2019-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.