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ELCDismissedNot stated in the judgment· [2025] KEELC 4168 (KLR)

Kerubo & Children v Motito & 3 others (Land Case E004 of 2025) [2025] KEELC 4168 (KLR)

Environment and Land Court
29 May 2025
DOD. O. Ohungo
1,478 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 in Nyamira dismissed attempts to strike out a land trespass suit, ruling the objections required fact-finding and were therefore not valid preliminary objections.

What this practically means

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Executive summary

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The Plaintiff sued the four Defendants by Plaint dated 3rd February 2025, alleging that they had entered the parcel known as North Mugirango/Ikonge/1XX1 and attempted to erect fences and structures. She sought a permanent injunction, eviction, and general damages for trespass, and separately a Notice of Motion for an interlocutory injunction. The First to Third Defendants filed a Notice of Preliminary Objection dated 17th February 2025 arguing that the Plaintiff lacked locus standi because she was not the personal representative of the estates of the deceased registered proprietors, Zachariah Ngurue Moturi and Ndubi Onsomu Onsango, that the suit offended Order 1 Rule 13(1) and (2) and Order 4 Rule 1(3) of the Civil Procedure Rules for want of authority to plead from her children, and that it disclosed no reasonable cause of action. The Fourth Defendant raised a similar locus standi objection in his replying affidavit. In submissions, the Defendants relied on Section 45 of the Law of Succession Act and Mwakivonje v Mwakaonje, while the Plaintiff relied on authorities cautioning against sparing exercise of the strike-out jurisdiction. Ohungo J applied the Mukisa Biscuit test as elaborated in Oraro v Mbaja, holding that a valid preliminary objection must be a pure point of law requiring no ascertainment of facts and no exercise of judicial discretion. Since the Plaint did not plead that the proprietors were deceased, the locus standi objection required factual inquiry; the authority point was one of misjoinder governed by Order 1 Rule 9, over which the court has discretion. The objections were dismissed with costs in the cause. The injunction application remains pending for future consideration if the suit survives.

Key legal issues

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01

Whether the objection on locus standi (plaintiff not being personal representative of the deceased registered proprietors) was a valid preliminary objection

Holding

It was not, because the plaintiff's pleadings did not state that the proprietors were deceased or who they were; establishing proprietorship and its legal consequences would require ascertainment of facts.

Reasoning

The court noted that the Plaint nowhere averred that the registered proprietors were deceased, nor named them. The defendants' facts about proprietorship could not found a pure point of law. Resolving the legal consequences would require investigation of facts, disqualifying the matter from being a valid preliminary objection under the Mukisa Biscuit test as elaborated in Oraro v Mbaja.

p. 3
02

Whether lack of authority from the plaintiff's children to plead on their behalf was a valid preliminary objection

Holding

It was not; it is an issue of joinder or misjoinder over which the court has discretion, and a suit cannot be defeated by misjoinder or nonjoinder under Order 1 Rule 9.

Reasoning

The court held that the question of authority to plead for the children falls within the court's discretion on joinder. Since a preliminary objection cannot resolve an issue admitting of judicial discretion, the objection failed under the Mukisa Biscuit principle.

p. 3

Legal principles established

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  • A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the opposing party are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised
  • A suit cannot be defeated by reason of misjoinder or nonjoinder of parties

Court orders

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  1. 1.The preliminary objections dated 17th February 2025 are dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Law of Succession ActSection 45
  • Civil Procedure RulesOrder 1 Rule 13(1) and (2)
  • Civil Procedure RulesOrder 4 Rule 1(3)
  • Civil Procedure RulesOrder 1 Rule 9

Cases cited (6)

  • Mwakivonje (On his Behalf and on Behalf of the Estate of Kassim Ali Nzimu, Salim Mwatenga, Jumaa Vwinyu and Mwamoyo Moyo – Deceased) v Mwakaonje
    [2024] KEELC 3794 (KLR)
  • Yaya Towers Limited v Trade Bank Limited (In Liquidation)
    [2000] eKLR
  • Crescent Construction Co. Ltd v Delphis Bank Ltd
    [2007] eKLR
  • Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others
    [2009] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Oraro v Mbaja
    [2005] eKLR
Jurisdiction invoked
Original jurisdiction under Article 162(2)(b) of the Constitution (implied by the Environment and Land Court); not expressly cited in the judgment

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, "Kerubo & Children v Motito & 3 others (Land Case E004 of 2025) [2025] KEELC 4168 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4168/eng@2025-05-29

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