Kulecho & another v Muchika & 2 others (Environment and Land Case E016 of 2024) [2025] KEELC 6506 (KLR)
The bottom line
#Kenya's Environment and Land Court in Kakamega struck out a preliminary objection, confirming that disputes involving contested facts must be raised by notice of motion, not objection.
What this practically means
#Executive summary
#Key legal issues
#Whether sub judice under section 6 of the Civil Procedure Act is a pure point of law suitable for a preliminary objection
It is not; sub judice requires proof of a pending suit between the same parties on the same issues, which involves contested facts
The court set out three elements of sub judice: a pending suit in a competent court, substantially the same issues, and the same parties or privies. Proving these requires pleadings and evidence of the pending suit, which is contested. Such matters must be raised by notice of motion supported by affidavit, not a preliminary objection.
Whether want of a grant of letters of administration under section 54 of the Law of Succession Act is a pure point of law
It is not, where possession of the grant is a contested averment; it should be raised by notice of motion
The plaintiff pleaded she held a grant dated 19th May 2023 naming her legal representative of the estate. Because the defendant disputed this, determining it would require evidence and a replying affidavit, which a preliminary objection cannot accommodate without prejudicing the responding party.
Whether evidence annexed to written submissions can be considered
No; such evidence was expunged from the record
The court held that evidence may only be presented under oath, orally or by sworn affidavit. Submissions are not made under oath, so attaching evidence to them is an unlawful backdoor. All evidence attached to both parties' submissions was therefore expunged and not considered.
Legal principles established
#- Sub judice and capacity questions based on contested facts cannot be raised by way of preliminary objection; they must be raised by notice of motion supported by affidavit
- Evidence cannot be presented as an attachment to submissions since submissions are not made under oath
Court orders
#- 1.Evidence attached to the parties' submissions expunged from the court record
- 2.The preliminary objection dated 28th October 2024 struck out with costs to the plaintiff
- Jurisdiction invoked
- Environment and Land Court Act (original jurisdiction); suit concerning estate of Kulecho Luchebeleli
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kulecho & another v Muchika & 2 others (Environment and Land Case E016 of 2024) [2025] KEELC 6506 (KLR)", Case Analysis (2025). Unknown. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6506/eng@2025-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.