Nyakundi v Munga & 2 others (Environment & Land Case E036 of 2023) [2025] KEELC 1269 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Preliminary Objection raises a pure point of law
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
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.
Whether the judgment in ELC Miscellaneous No. 240 of 2017 barred the Plaintiff from filing the present suit outside the 90-day period
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
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).
Whether the Court has jurisdiction over the suit
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
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.
Legal principles established
#- 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
#- 1.The Notice of Preliminary Objection dated 24/1/2025 is dismissed entirely with costs in favour of the Plaintiff
- Jurisdiction invoked
- Article 162 of the Constitution read with Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.