Case ID:169684

Kaloleni Muslim Mosque Committee & another v Seventh Day Adventist Limited & another [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case 25 of 2018

Parties:

Kaloleni Muslim Mosque Committee & Kisumu Muslim Association v Seventh Day Adventist Limited & National Land Commission

Date Delivered:

28 Jan 2021

Case Class:

Civil

Court:

Environment and Land Court at Kisumu

Case Action:

Ruling

Judge(s):

Antony Ombwayo

Citation:

Kaloleni Muslim Mosque Committee & another v Seventh Day Adventist Limited & another [2021] eKLR

Court Division:

Environment and Land

County:

Kisumu

Case Outcome:

Application dismissed with costs.

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC NO. 25 OF 2018

KALOLENI MUSLIM MOSQUE COMMITTEE.....................1

ST

PLAINTIFF

KISUMU MUSLIM ASSOCIATION..........................................2

ND

PLAINTIFF

VERSUS

SEVENTH DAY ADVENTIST LIMITED...............................1

ST

DEFENDANT

NATIONAL LAND COMMISSION........................................2

ND

DEFENDANT

RULING

The 1

st

defendant has filed a Notice of Preliminary Objection dated 9

th

November, 2020 that the firm of Ms. Amondi & Company Advocates continued representation of the plaintiffs in this matter is conflicted by virtue of their representation of the defendants in Environment and Land court at Kisumu Case Number 806 of 2015 S.D.A Church (E.A) Limited – Vs – Caleb Ouma & 4 Others and subsequent application number 151 of 2019 in the court of appeal in Kisumu. He states that in both cases Amondi & Company Advocates clients seek title ownership and possession of land Kisumu Municipality Block/40.

I have considered the rival submission and do find that this Preliminary Objection requires a lot of factual explanation and therefore it does not meet the threshold of a Preliminary Objection. As opposed to a Preliminary Objection, the 1

st

defendant ought to have made an application to bar the firm of Amondi & Company Advocates to appear for the plaintiff. Conflict of interest cannot be brought out by way of preliminary objection but an application supported by affidavit. The Preliminary Objection is clearly misconceived and goes against the decision in Mukisa Biscuits Manufacturing Limited – Vs – West End Distributors 1969 (E.A) 696 where their Lordship observed: -

“…a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties’ are bound by a contract giving rise to the suit to refer the dispute to arbitration.”

In the case of

Serve in Love Africa (SILA) Trust –Vs- David Kipsang Kipyego 2017 eKLR,

cited by the 1

st

defendant, this court was dealing with an application to bar an advocate from representing a client but not a Preliminary Objection.

It is my view that an application to bar an advocate from representing a party cannot be dealt with by way of Preliminary Objection because it involves facts that need to be verified. Where a party asserts that conflict of interest exists, there must be sufficient evidence to demonstrate that the conflict exists. I do find that the Preliminary Objection has no basis. The same is dismissed with costs.

DATED AND DELIVERED THIS 28

th

DAY OF JANUARY, 2021.

A. O. OMBWAYO

ENVIRONMENT & LAND - JUDGE

This RULING has been delivered to the parties by electronic mail due to measures restricting court operations due to the COVID-19 pandemic and in the light of the directions issued by his Lordship, the Chief Justice on 15

th

March 2019.

A. O. OMBWAYO

ENVIRONMENT & LAND – JUDGE