Muloki & another v Mathuku & 2 others (Administrators of the Estate of Stephen Mathuku Kavuu (Deceased)) (Environment and Land Appeal 62 of 2019) [2022] KEELC 3581 (KLR)

The court held that the substratum of the appeal was the dismissal of the review application, and the question of Akonya's authority never arose before the lower court. The evidence on his practising status was not before the court. A preliminary objection must rest on pure points of law without disputed facts. Raising it in one's own appeal to attack the very judgment sought to be reviewed was untenable and an abuse of process.

The sale agreements were in the Appellants' possession before judgment and their production was never pursued; the transfer-fee receipt dated 2005 was allegedly signed by a man who died in 1989, and its genuineness was unrebuted; the chief's letter was a mere opinion on a matter pending before the trial court. None passed the threshold of new and important evidence.

Counsel filed and served the objection on 2nd and 3rd April 2019 but on 3rd April proceeded with the defence hearing without mentioning it. No directions were sought. The pleadings were silent on limitation and jurisdiction was admitted; the plaint averred entry in 1997, making the 2008 suit within the 12-year period under section 7 of the Limitation of Actions Act. Allowing the objection to be raised on appeal would permit litigating in instalments.