Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2025] KEELC 8109 (KLR)

Kandie & another (Suing as administrators and beneficiaries of the Estate of Aaron Kimosop Kandie) v Miotoni West Villas Ltd & another; Kandie & another (Third party) (Land Case E315 of 2024) [2025] KEELC 8109 (KLR)

Environment and Land Court
24 November 2025
4,352 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court declined to strike out third-party proceedings in a land dispute, staying them until the main suit is decided.

What this practically means

#

Executive summary

#
The plaintiffs/applicants moved the Environment and Land Court by notice of motion and preliminary objection both dated 31st January, 2025, seeking to strike out the third-party notice issued against the 1st and 2nd third parties, to strike out the 2nd third party's defence and cross claim, and to set aside the order of 29th October, 2024 allowing third-party proceedings. They argued there was no direct right connecting the third-party claim to their suit, that the 2nd third party (purporting to act for the Estate of Kiptui Kandie) lacked locus standi, and that the issues were res judicata having been dealt with in ELC Case No. 344 of 2009 and Succession Cause 991 of 2003. The defendants/respondents opposed, contending the application was a disguised attempt to review the court's earlier order without meeting the threshold for review, and that the third parties must be joined to determine liability and contribution relating to the suit property, LR 1055/19 Miotoni West Road, which forms part of the estate of the late Aaron Kimosop Kandie. Framing two issues - the 2nd third party's locus and whether the third-party notice should be struck out - the court dismissed the preliminary objection because the grounds required ascertainment of disputed facts and could not dispose of the suit. On the application, applying the principles in Mukisa Biscuits, Dt Dobie and Ramji Megji Gudka, the court held that striking out pleadings is draconian and must be sparingly exercised; though it saw no resemblance between the defendants' third-party claim and the plaintiffs' suit, the appropriate course was to stay the third-party proceedings pending determination of the main suit. Both the motion and the preliminary objection were dismissed, with third-party proceedings stayed.

Key legal issues

#
01

Whether the preliminary objection on locus standi and res judicata was a pure point of law

Holding

The preliminary objection was dismissed because it required investigation of facts and could not dispose of the suit in its entirety.

Reasoning

Applying Mukisa Biscuits, Oraro v Mbaja and John Musakali, the court held that a preliminary objection must be a pure point of law arising from pleadings with undisputed facts and capable of disposing of the suit without trial. The objections on Constantine Seroney's legal representative status and on res judicata required the court to comb through evidence, defeating the purpose of a preliminary objection.

p. 6
02

Whether the third-party notice, defence and cross claim should be struck out as an abuse of process

Holding

The application to strike out was dismissed; instead third-party proceedings were stayed pending determination of the main suit.

Reasoning

Guided by Ramji Megji Gudka and Dt Dobie, the court noted that striking out is draconian and must be sparingly exercised in the clearest of cases without delving into merits. Although it saw no semblance between the defendants' claim against the third parties and the plaintiffs' suit, the fair course was to allow parties to ventilate their issues, staying the third-party proceedings in the interim.

p. 8

Legal principles established

#
  • A preliminary objection must be a pure point of law not dependent on ascertainment of disputed facts
  • The power to strike out pleadings must be sparingly exercised and only in the clearest of cases
  • Where striking out is unwarranted, a stay of third-party proceedings may be the appropriate interim measure

Court orders

#
  1. 1.The notice of preliminary objection dated 31st January, 2025 is dismissed
  2. 2.The notice of motion dated 31st January, 2025 is dismissed for lack of merit
  3. 3.Stay of third-party proceedings pending the determination of the suit between the plaintiffs/applicants and the defendants/respondents

Authorities

#

Legislation

  • Civil Procedure RulesOrder 1 Rules 10, 14, 15; Order 2 Rule 15; Order 51
  • Civil Procedure ActSections 1A, 1B, 3A, 7
  • Civil Procedure RulesOrder 15 Rule 1(a)(b)(c)

Cases cited (12)

  • Savings & Loan (K) Limited v Kanyenje Karangaita Gakombe & another
    [2015] KECA 784 (KLR)
  • Interactive Advertising Limited & Another v Equity Bank Limited & 2 Others
    [2015] KEHC 8088 (KLR)
  • Satya Bhama Gandhi v Director of Public Prosecutions & 3 others
    [2018] eKLR
  • Philip Odhiambo Messo & another v Citi Hopper Limited; Grand Bus Services Limited (Third Party)
    [2021] eKLR
  • Elgon Kenya Limited v Bayer East Africa Limited
    [2021] eKLR
  • Mukisa Biscuits Manufacturing Company Limited -vs- West End Distributors
    (1969) EA 696
  • John Musakali vs. Speaker County of Bungoma & 4 others
    (2015) eKLR
  • Oraro -vs- Mbaja
    (2005) KLR 141
  • Ramji Megji Gudka Ltd versus Alfred Morfat Omundi Michira & 2 Others
    [2005] eKLR
  • Dt Dobie & Company (kenya) Ltd. V. Muchina
    [1982] KLR 1
  • Oceanfreight (EA) Ltd v Technomatic Ltd & Another
    [2010] eKLR
  • Jessie Mwangi Gachago v Attorney General
    [1981] KLR 322
Jurisdiction invoked
Original civil jurisdiction; application under Order 1 Rules 10, 14 and 15, Order 2 Rule 15 and Order 51 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kandie & another (Suing as administrators and beneficiaries of the Estate of Aaron Kimosop Kandie) v Miotoni West Villas Ltd & another; Kandie & another (Third party) (Land Case E315 of 2024) [2025] KEELC 8109 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8109/eng@2025-11-24

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