Kagunyi & another v Mwathi (Sued as the Legal Representative of Gatumu Kiricho – Deceased) & 6 others (Environment & Land Case E030 of 2022) [2024] KEELC 882 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed you can sue over land decisions using a declaratory suit instead of judicial review, keeping the case alive for trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaint competent in place of judicial review
Yes - the court is invited to make a declaratory order under Order 3 Rule 9, and other prayers are consequential reliefs; a declaratory suit is a proper vehicle despite a parallel judicial review route
The court relied on the Court of Appeal decision in Nicholus Njeru v Attorney General, which held that although certain prayers would fit judicial review, there is no limit on the court's power to grant declaratory orders. Order 3 Rule 9 provides that no suit is objectionable merely because a declaratory judgment is sought. The plaintiff's suit therefore survives the procedural challenge.
Whether the preliminary objection is a pure point of law
No - the objection rests on contested facts since the defence consists mainly of denials and no material aspect of the plaint is admitted
Applying the Mukisa Biscuit test, a preliminary objection must be argued on the assumption that all facts pleaded by the other side are correct. Here the defence filed on 19.12.2022 is largely denials, meaning facts are disputed and require evidence. The proper course was to raise the issues at trial rather than by way of preliminary objection.
Legal principles established
#- A preliminary objection must raise a pure point of law on assumed facts and cannot be raised where facts must be ascertained or discretion exercised
- The court's power to grant declaratory orders is not limited merely because a litigant could have pursued judicial review
Court orders
#- 1.The preliminary objection dated 15.12.2022 is dismissed
- 2.The suit shall proceed to full trial
- Jurisdiction invoked
- Original jurisdiction under Article 162(2)(b) of the Constitution / ELC Act (not expressly cited in ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kagunyi & another v Mwathi (Sued as the Legal Representative of Gatumu Kiricho – Deceased) & 6 others (Environment & Land Case E030 of 2022) [2024] KEELC 882 (KLR)", Case Analysis (2024). Embu ELC (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/882/eng@2024-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.