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ELCDismissedELD ELC Case No. 250 of 2016 (reference as Eldoret ELC Case No. 250 of 2016 appears as cited authority; present suit Plaintiff's Plaint dated 26.06.2024)· [2025] KEELC 4002 (KLR)

Mutwol v Koima Developers Limited (Environment & Land Case E040 of 2024) [2025] KEELC 4002 (KLR)

Environment and Land Court
26 May 2025
EWEmmanuel M. Washe
1,400 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 preliminary objection because the defendant had not filed a defence and relied on disputed facts.

What this practically means

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Executive summary

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The Defendant (Applicant) filed a preliminary objection dated 11.12.2024 against the Plaintiff's (Respondent's) Plaint and Notice of Motion, both dated 26.06.2024, arguing that the suit was res judicata to Eldoret ELC Case No. 250 of 2016 (Tarzan Limited v Koima Developers Limited & another, judgment of 12.04.2021) and sub judice Court of Appeal Civil Appeal No. E011 of 2022, that the court lacked jurisdiction, and that the suit was an abuse of process. The Respondent countered that the objection was premature since determining res judicata would require an investigation of facts and a full hearing. The court, per Washe J, framed three issues. On the suit, it applied Mukisa Biscuits and held that a preliminary objection must arise from pleadings; as the Applicant had filed no Statement of Defence, the objection was premature and unmerited, following Unilever Tea Kenya Ltd and George Waweru Njuguna. On the application, the Respondent's Replying Affidavit disputed the facts pleaded about the prior proceedings, and applying Oraro v Mbaja, the court held that a preliminary objection cannot rest on disputed facts. On costs, costs follow the event and the unsuccessful Applicant was to pay. The court dismissed the preliminary objection dated 11.12.2024 and ordered the Defendant/Applicant to pay the applicable costs of the objection to the Plaintiff/Respondent. Judgment delivered virtually at Eldoret ELC on 26 May 2025.

Key legal issues

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01

Sustainability of a preliminary objection against a plaint where no defence is on record

Holding

The PO against the plaint was premature and not merited because the Defendant had filed no Statement of Defence

Reasoning

Relying on Mukisa Biscuits and Unilever Tea Kenya Ltd, the court held that a preliminary objection must arise from pleadings, and the proper procedure is to file a defence first, raising the point of law within it. Absent a defence, the objection lacks a pleading basis and surprises the plaintiff, so it cannot stand.

p. 3
02

Whether res judicata and sub judice could be determined as a preliminary objection against the application

Holding

The PO against the application failed because the Respondents disputed the facts relied upon regarding the prior proceedings

Reasoning

The Replying Affidavit dated 27.09.2024 disputed most if not all facts pleaded regarding Eldoret ELC Case No. 250 of 2016 and the Court of Appeal appeal. Following Oraro v Mbaja, anything requiring investigation of facts or depending on factual information to be tested by evidence cannot be a preliminary objection.

p. 3

Legal principles established

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  • A preliminary objection against a plaint is premature where the objector has not filed a statement of defence raising the point of law
  • A matter requiring investigation of disputed facts cannot be raised as a preliminary objection

Court orders

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  1. 1.The preliminary objection dated 11.12.2024 be and is hereby dismissed
  2. 2.The defendant/Applicant will pay the applicable costs related to the preliminary objection dated 11.12.2024 to the plaintiff/respondent

Authorities

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Legislation

  • Civil Procedure ActSection 6

Cases cited (4)

  • Mukisa Busicuits Manufacturing Company Limited-versus- Westend Distributors Limited
    (1969) EA 696
  • Unilever Tea Kenya Limited-versus- Andrew Cheruiyot Rotich & 3 others
    (2020) eKLR
  • George Waweru Njuguna-versus- Pauline Chesang Gitau Kamuyu
    (2017) eKLR
  • Oraro-Versus- Mbaja
    (2005) 1 KLR 141
Jurisdiction invoked
Environment and Land Court jurisdiction under Cap 21 Civil Procedure Act framework (Section 6 invoked by Applicant)

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, "Mutwol v Koima Developers Limited (Environment & Land Case E040 of 2024) [2025] KEELC 4002 (KLR)", Case Analysis (2025). ELD ELC Case No. 250 of 2016 (reference as Eldoret ELC Case No. 250 of 2016 appears as cited authority; present suit Plaintiff's Plaint dated 26.06.2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4002/eng@2025-05-26

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