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ELCDismissedELC No. 134 of 2016 (as referenced in the judgment)· [2025] KEELC 1461 (KLR)

Omu v Kizo Enterprises Limited & 3 others (Environment & Land Case 3 of 2016) [2025] KEELC 1461 (KLR)

Environment and Land Court
24 March 2025
974 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a defendant's preliminary objection because it required checking facts, not just arguing law, so execution can proceed.

What this practically means

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Executive summary

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Before the Environment and Land Court at Malindi (Mwangi Njoroge J) was a notice of preliminary objection dated 21 February 2025 raised by the 4th Defendant in response to the Plaintiff's motions dated 5 February 2025 and 16 December 2024, filed under Order 22 Rule 40 of the Civil Procedure Rules seeking execution against the 4th Defendant following judgment in this suit and in ELC No. 134 of 2016. The objection advanced two grounds: first, that the court lacked jurisdiction to issue the orders sought because of orders of stay of execution/status quo allegedly issued in Malindi Court of Appeal Civil Application No. E102 of 2024 (and Civil Appeal No. E006 of 2025), Ketan Doshi v Kiso Enterprises Limited & others; secondly, that costs awarded to the Plaintiff were yet to be taxed and no leave had been sought to execute before taxation under Section 94 of the Civil Procedure Act, rendering execution irregular, null and void. Counsel relied on Republic v National Environment Tribunal ex-parte Palm Homes, KALPA v Cooperative Bank, and Commercial Bank of Africa v Rabadia; the Plaintiff filed no submissions. The court, applying the settled Mukisa Biscuit principles, held that the grounds required factual inquiry into the existence and scope of the status quo order, the taxation status, and whether leave had been granted, thereby ousting the objection from the realm of a pure point of law. The objection was dismissed with costs, the issues to be canvassed in the pending applications.

Key legal issues

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01

Whether the preliminary objection qualified as a pure point of law

Holding

It did not; establishing the existence and scope of the Court of Appeal status quo order and the taxation/leave position under Section 94 would require inquiry into evidence, so the objection was dismissed

Reasoning

Applying Mukisa Biscuit, the court held that preliminary objections must rest solely on law. Here, the grounds required the court to inquire whether a status quo order exists and its scope, whether costs are yet to be taxed, and whether leave under Section 94 of the Civil Procedure Act was sought. Since factual ascertainment is needed, the objection cannot be determined as a preliminary point and should be canvassed within the pending applications.

p. 3

Legal principles established

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  • A preliminary objection must raise a pure point of law; it fails if facts must be ascertained or judicial discretion exercised
  • A valid preliminary objection, if successful, should dispose of the suit or the applications before the court

Court orders

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  1. 1.The notice of preliminary objection dated 21/2/2025 is dismissed
  2. 2.Costs of the preliminary objection awarded to the Plaintiff

Authorities

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Legislation

  • Civil Procedure ActSection 94

Cases cited (4)

  • Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd
    [1969] EA 696
  • Republic v National Environment Tribunal, Ex-parte Palm Homes Limited & Another
    [2013] eKLR
  • Kenya Airline Pilots Association (KALPA) v Cooperative Bank of Kenya Limited & another
    [2020] eKLR
  • Commercial Bank of Africa v. Lalji Karsan Rabadia & 2 others
    [2012] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (implied); judgment on execution applications following judgment in this suit and ELC No. 134 of 2016

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, "Omu v Kizo Enterprises Limited & 3 others (Environment & Land Case 3 of 2016) [2025] KEELC 1461 (KLR)", Case Analysis (2025). ELC No. 134 of 2016 (as referenced in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1461/eng@2025-03-24

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