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ELCDismissedNot stated in the judgment extract· [2025] KEELC 7931 (KLR)

Mwanganu v National Land Commission & 2 others (Environment and Land Case E068 of 2023) [2025] KEELC 7931 (KLR)

Environment and Land Court
17 November 2025
1,774 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a defendant's attempt to strike off a land case, ruling that arguments needing evidence cannot be raised as preliminary objections.

What this practically means

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Executive summary

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The Plaintiff sued the 1st and 2nd Defendants over land known as Ruiru/Ruiru East Block 3/1599, alleging that the 1st Defendant registered a caution indicating the land was pending repossession and that the 2nd Defendant had encroached on, fenced off and constructed structures on the parcel. Both Defendants filed defences denying the claim. The 2nd Defendant, alongside his defence, raised a Notice of Preliminary Objection dated 7th May 2025 arguing that he lacked capacity to be sued personally because the suit property had been allocated to the King'ara Foundation, a trust allegedly incorporated under the Trustees (Perpetual Succession) Act Cap 164, which alone has power to sue and be sued in its corporate name; he sought striking out of the suit with costs. The court directed disposal by written submissions. Relying on Mukisa Biscuits Manufacturing Ltd v West End Distributors, the court reiterated that a preliminary objection must be a pure point of law argued on the assumption that the pleaded facts are correct, and cannot be raised where facts must be ascertained. The court found that determining whether the property was allocated to the 2nd Defendant personally or to the Foundation, and whether the Foundation is registered with trustees under the Act, requires evidence beyond the pleadings. The Preliminary Objection was therefore dismissed with costs to the Plaintiff. The main suit remains pending for trial.

Key legal issues

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01

Whether the 2nd Defendant's Notice of Preliminary Objection on capacity to be sued was sustainable

Holding

The objection failed because whether the suit property was allocated to the 2nd Defendant personally or to Kingara Foundation, and whether the Foundation is a registered trust under the Trustees (Perpetual Succession) Act, are matters requiring evidence, not pure points of law on the pleadings.

Reasoning

The court adopted the Mukisa Biscuits definition of a preliminary objection as a pure point of law assumed on the pleaded facts. It held that determining capacity required examination of correspondence with the allotting authority and proof of Kingara Foundation's registration and trusteeship under the Act. Since these facts are not apparent from the pleadings and must be ascertained by evidence, the objection does not qualify as a preliminary objection and was dismissed with costs.

p. 4

Legal principles established

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  • A preliminary objection must be a pure point of law pleaded or arising by clear implication from the pleadings, and cannot be raised where facts have to be ascertained by evidence

Court orders

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  1. 1.The Preliminary Objection dated 7th May 2025 is dismissed with costs to the Plaintiff

Authorities

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Legislation

  • Trustees (Perpetual Succession) ActCap 164, section 3(3)
  • Trustees (Perpetual Succession) ActCap 164, section 3B
  • Trustees (Perpetual Succession) ActCap 164, section 12
  • Civil Procedure RulesOrder 31 Rule 1

Cases cited (4)

  • Kipsiwo Community Self Help Group v Attorney General
    (2013)
  • Nzele David Nzomo v Moses Namanyi Anyangu
    2009 eKLR
  • Oraro v Mbaja
    (2005) eKLR
  • Mukisa Biscuits Manufacturing Ltd vs West End Distributors
    (1969) EA 696
Jurisdiction invoked
Original civil jurisdiction over the land dispute; matter proceeded on a Notice of Preliminary Objection dated 7th May 2025

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, "Mwanganu v National Land Commission & 2 others (Environment and Land Case E068 of 2023) [2025] KEELC 7931 (KLR)", Case Analysis (2025). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7931/eng@2025-11-17

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