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ELCStruck OutNot stated in the judgment· [2025] KEELC 3737 (KLR)

Cheruiyot v Onsando & another (Environment and Land Miscellaneous Application E010 of 2024) [2025] KEELC 3737 (KLR)

Environment and Land Court
8 May 2025
896 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kilgoris (M.N. Mwanyale J) dealt with a notice of preliminary objection dated 11 November 2024 filed by the respondents against the plaintiff/applicant's notice of motion dated 5 November 2024, which was said to relate to execution proceedings arising from Kilgoris CM EL No. 36 of 2018. The objection raised seven grounds, including contravention of Order 51 rule 4 of the Civil Procedure Rules, contravention of section 7 of the Civil Procedure Act (res judicata), failure to meet the conditions of Order 42 rule 6, abuse of court process, and allegations of fraud, prematurity and unclean hands. The court framed a single issue: whether the objection met the threshold of a preliminary objection capable of determining the suit in limine. Applying the Mukisa Biscuit Manufacturers test and the Omondi v National Bank formulation, the court held that only three grounds (Order 51 rule 4, section 7 and Order 42 rule 6) were points of law; the remaining grounds were factual narrations requiring ascertainment of facts and evidence and thus could not be raised as a preliminary objection. The objection as a whole failed, and rather than determine the legal grounds on their merits, the court directed that they be considered as part of the response to the substantive application. The preliminary objection was struck out with costs in the cause.

Key legal issues

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Whether the preliminary objection met the threshold of a proper preliminary objection

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The preliminary objection dated 11.11.2024 is struck out
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 51 rule 4
  • Civil Procedure Rules, 2010Order 42 rule 6
  • Civil Procedure ActSection 7

Cases cited (3)

  • Mukisa Biscuit Manufacturer Limited vs Westend Distributors Limited
  • Omondi vs National Bank of Kenya Limited and 2 others
  • J. N. and 5 others vs Board of Management St. G. School Nairobi and Another
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

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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, "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.