Daykio Plantations Ltd v National Bank of Kenya Ltd & 2 others (Environment and Land Case 222 of 2018) [2019] KEELC 48 (KLR)
The bottom line
#A Kenyan land court refused to strike out a suit where the plaintiff claims beneficial ownership, ruling that such claims need 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 within the Mukisa Biscuit threshold
- 2.Whether the Applicant lacks locus standi to institute the suit, such that the suit should be struck out
Key legal issues
#Whether the notice of preliminary objection met the Mukisa Biscuit threshold
The Court found the objection was properly raised as a preliminary objection since lack of locus standi can dispose of the matter without ascertaining facts
The Court applied the classic Mukisa Biscuit test, holding that locus standi is a point of law capable of disposing of a suit preliminarily without resorting to facts outside the pleadings, so the objection was properly characterised.
Whether the Applicant lacks locus standi given its claim of beneficial interest and trust
The objection failed because the Applicant's beneficial interest is a question of fact requiring evidence at the hearing, not resolvable on a preliminary objection
The Applicant claimed beneficial ownership and that the 2nd Respondent holds the title as a resulting trustee. Determining that claim would require the Court to interrogate evidence, which is impermissible on a preliminary objection; dismissing the suit at that stage would be draconian and would deny the Applicant a hearing on the merits.
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; it cannot be raised if any fact has to be ascertained or where judicial discretion is sought
- Lack of locus standi can dispose of a matter preliminarily, but where the claimant asserts a beneficial interest or trust, that question requires evidence and cannot be resolved by preliminary objection
Court orders
#- 1.The 1st Respondent's Preliminary Objection dated 16th August 2018 is dismissed entirely
- 2.Costs of the Preliminary Objection 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 dispute (no specific provision cited in the judgment)
Relief refused
#1st Respondent's prayer that the Applicant's suit be struck out for want of locus standi
Whether the Applicant holds a beneficial interest in the suit property is a matter of evidence that cannot be determined via a preliminary objection
Costs
The 1st Respondent's 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 Court finds and holds that at this juncture, 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.
the 1st Respondent's Preliminary Objection is not merited and the same is dismissed entirely with costs being in the cause.
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
Issues in the judgment
#The judgment does not state the case number or the names of the parties; it opens directly at the determination stage and refers to the parties only as Applicant/Respondents
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daykio Plantations Ltd v National Bank of Kenya Ltd & 2 others (Environment and Land Case 222 of 2018) [2019] KEELC 48 (KLR)", Case Analysis (2019). not_stated_in_judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/48/eng@2019-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.