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ELCDismissedNot stated in the judgment (Preliminary Objection dated 24/1/2025)· [2025] KEELC 1269 (KLR)

Nyakundi v Munga & 2 others (Environment & Land Case E036 of 2023) [2025] KEELC 1269 (KLR)

Environment and Land Court
13 March 2025
1,363 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a defendant's attempt to throw out a land case, ruling that a preliminary objection must rest on pure law, not disputed facts.

What this practically means

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Executive summary

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The 1st Defendant filed a Preliminary Objection dated 24/1/2025 seeking dismissal of the suit on the ground that it was filed contrary to the judgment of Eboso J in ELC Miscellaneous No. 240 of 2017 (Vereria Wanjiru Munga v Haron G. Nyakundi), in which the removal of the Plaintiff's caution over the suit property was suspended for 90 days to allow the Plaintiff to institute appropriate proceedings. The 1st Defendant argued that the present suit, filed in 2023, was out of time and incompetent, and that the Court lacked jurisdiction. The Plaintiff countered that the 1st Defendant had admitted the Court's jurisdiction in its defence, that the objection was not a pure point of law since it required scrutiny of the record in the miscellaneous cause (which the 1st Defendant failed to produce), that the prior judgment did not limit the time for filing suit but only the removal of the caution, and that extension of time is a discretionary matter. Relying on the Mukhisa Biscuit definition of a preliminary objection as restated in Hassan Ali Joho, J. G. Kemei J held that the objection was not a pure point of law: analyzing the prior judgment and its record took it outside the demurrer category. The Court found the prior judgment only limited the removal of the caution after 90 days and did not bar a later suit; that ownership and title to land fall within the Court's jurisdiction under Article 162 of the Constitution and Section 13 of the ELC Act; and that ousting the Plaintiff would deny him access to justice under Articles 48 and 50(1). Noting also that the objection was raised at the eve of hearing, the Court dismissed it entirely with costs to the Plaintiff.

Key legal issues

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01

Whether the Preliminary Objection raises a pure point of law

Holding

It does not; determining it would require the Court to scrutinize the record in ELC Miscellaneous No. 240 of 2017, which the 1st Defendant failed to produce

Reasoning

Applying the Mukhisa Biscuit definition as restated in Hassan Ali Joho, the Court held that an objection requiring appraisal of a prior court record is not a pure point of law. The 1st Defendant failed to produce the record of the miscellaneous cause, and the Court's own perusal of the judgment showed it only suspended removal of the caution for 90 days without barring a later suit.

p. 3
02

Whether the judgment in ELC Miscellaneous No. 240 of 2017 barred the Plaintiff from filing the present suit outside the 90-day period

Holding

It did not; the 90 days only limited the removal of the caution and did not restrict the Plaintiff's right to file suit at any other time

Reasoning

The Court read the prior judgment as suspending the removal of the caution for 90 days to allow the Plaintiff to institute appropriate proceedings. Failure to do so within that window meant the caution stood removed, but no limitation was imposed on instituting suit thereafter. Ousting the Plaintiff would deny him access to justice under Article 48 and fair hearing under Article 50(1).

p. 3
03

Whether the Court has jurisdiction over the suit

Holding

Yes; the dispute concerns ownership and title to land, within the Court's jurisdiction under Article 162 of the Constitution and Section 13 of the ELC Act

Reasoning

The bone of contention between the parties is who is the legal owner of the suit land. Determination of title to land is expressly within the jurisdiction of the Environment and Land Court under Section 13 of the ELC Act read with Article 162 of the Constitution, so the objection on jurisdiction fails.

p. 3

Legal principles established

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  • A preliminary objection must raise a pure point of law and cannot be raised where facts need to be ascertained or judicial discretion is sought
  • Analysis of a prior judgment ousts an objection from being a pure point of law

Court orders

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  1. 1.The Notice of Preliminary Objection dated 24/1/2025 is dismissed entirely with costs in favour of the Plaintiff

Authorities

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Legislation

  • Constitution of KenyaArticle 162
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50(1)
  • Environment and Land Court ActSection 13

Cases cited (2)

  • Hassan Ali Joho & Another -Vs- Suleiman Said Shabal & 2 others
    SCK Petition No. 12013 [2014] eKLR
  • Mukhisa Biscuit Manufacturers Ltd vs West End Distributors Ltd
    (1969) E.A
Jurisdiction invoked
Article 162 of the Constitution read with Section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nyakundi v Munga & 2 others (Environment & Land Case E036 of 2023) [2025] KEELC 1269 (KLR)", Case Analysis (2025). Not stated in the judgment (Preliminary Objection dated 24/1/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1269/eng@2025-03-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.