Cheruiyot v Onsando & another (Environment and Land Miscellaneous Application E010 of 2024) [2025] KEELC 3737 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection met the threshold of a proper preliminary objection
Only the grounds on Order 51 rule 4, section 7 of the Civil Procedure Act and Order 42 rule 6 were points of law; the remaining grounds were factual narrations, so the objection as a whole failed
Applying the Mukisa Biscuit test and the Omondi v National Bank formulation, the court held that a preliminary objection cannot depend on ascertainment of facts. The grounds alleging delay of execution, abuse of process and fraud were factual and required evidence via viva voce or affidavit. Only three grounds were pure points of law, and these were referred to be considered as part of the response to the substantive application.
Legal principles established
#- A preliminary objection must consist of a pure point of law and cannot be raised where facts must be ascertained or judicial discretion exercised
- A preliminary objection must not deal with disputed facts or derive its foundation from factual information to be tested by the rules of evidence
Court orders
#- 1.The preliminary objection dated 11.11.2024 is struck out
- 2.Costs in the cause
- Jurisdiction invoked
- Not expressly stated; the court exercises its inherent and procedural powers under the Civil Procedure Act and Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cheruiyot v Onsando & another (Environment and Land Miscellaneous Application E010 of 2024) [2025] KEELC 3737 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3737/eng@2025-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.