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ELCOtherNot stated in the judgment text provided

Kahara v M’Itobi & 7 others (Environment and Land Case E012 of 2023) [2025] KEELC 5700 (KLR)

Environment and Land Court
30 July 2025
BEB M Eboso
1,364 words in judgment
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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 Meru (B M Eboso, J) determines a preliminary objection dated 12/3/2025 raised by the 3rd defendant, who argued that the court lacked jurisdiction because the plaintiff had failed to exhaust the statutory appeal to the Minister under Section 29 of the Land Adjudication Act in respect of decisions in objection proceedings numbers 584, 585, 586, 360, 361, 362 and 363. The 3rd defendant, through counsel, contended that a purported decision of the Land Adjudication Officer dated 11/9/2014 was final and binding, and that the plaintiff had slept on his rights for ten years. The plaintiff opposed, arguing that the point required ascertainment of facts and thus did not meet the 'pure point of law' threshold, that the officer had purportedly determined a matter already decided by the courts, and that the suit raised allegations of fraud and illegality in the issuance of titles over subdivided land. Framing two issues, the court first applied the Mukisa Biscuits test as reiterated by the Supreme Court in Hassan Ali Joho and held that the objection required examination of evidence. The court held that the purported decision had only been annexed to written submissions, which is an irregular and impermissible mode of tendering documentary evidence. The objection was therefore struck out without any determination of the Section 29 ouster question, with liberty granted to re-raise the point by notice of motion supported by affidavit, and the 3rd defendant condemned to pay costs of the objection.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the point canvassed in the preliminary objection dated 12/3/2025 meets the threshold of a preliminary objection
  2. 2.Whether, in relation to the dispute in this suit, the jurisdiction of this court has been ousted by the provisions of Section 29 of the Land Adjudication Act

Key legal issues

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01

Whether the objection satisfied the threshold of a preliminary objection

Holding

It did not; the point required examination of objection proceedings and an alleged decision, i.e. it required evidence which was not properly before the court

Reasoning

The court applied the Mukisa Biscuits threshold as reiterated by the Supreme Court in Hassan Ali Joho: a preliminary objection raises a pure point of law on the assumption that all facts pleaded are correct, and cannot be raised if facts must be ascertained. Since the objection was anchored on proceedings and decisions under Section 26 of the Land Adjudication Act, the court would have to examine those documents. The only documentary evidence tendered was annexed to written submissions, which the court held is irregular and cannot be relied upon as evidence.

p. 3

Legal principles established

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  • Annexing documentary evidence to written submissions is irregular; such annexures cannot be relied upon as evidence
  • A preliminary objection cannot be sustained where the point requires ascertainment of facts or the tendering of evidence

Court orders

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  1. 1.The preliminary objection dated 12/3/2025 is struck out
  2. 2.The objector is at liberty to canvass the point on the platform of a notice of motion supported with a sworn affidavit containing relevant evidence and annexures
  3. 3.The court makes no pronouncement on the second issue (ouster of jurisdiction under Section 29 of the Land Adjudication Act)
  4. 4.The 3rd defendant to bear the costs of the preliminary objection

The bench

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One judgment of the whole court — no separate or dissenting opinions.

BE
majority

Wrote the judgment

Jurisdiction invoked
Not stated; the court sat in its original jurisdiction under the Environment and Land Court Act to determine a preliminary objection

Relief refused

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Pronouncement on whether Section 29 of the Land Adjudication Act ousts the court's jurisdiction

The preliminary objection failed the threshold test, so the court declined to determine the merits of the jurisdictional point

p. 3

Costs

The 3rd defendant will bear costs of the preliminary objection

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Annexing evidence to a party’s written submissions is irregular. Such an annexure cannot be relied upon as evidence.
p. 3documentary evidence and written submissions
For the above reasons, the preliminary objection dated 12/3/2025 is struck out on the above grounds.
p. 3disposition
The objector will be at liberty to canvass the point on the platform of a notice of motion supported with a sworn afidavit containing relevant evidence and annexures.
p. 3liberty to re-raise the point
For inappropriately raising her point on a preliminary objection, the 3rd defendant will bear costs of the preliminary objection.
p. 3costs

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, "Kahara v M’Itobi & 7 others (Environment and Land Case E012 of 2023) [2025] KEELC 5700 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5700/eng@2025-07-30

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