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ELCDismissedEnvironment and Land Appeal E016 of 2025· [2026] KEELC 78 (KLR)

Matikela v Makato (Environment and Land Appeal E016 of 2025) (Environment and Land) [2026] KEELC 78 (KLR)

Environment and Land Court
14 January 2026
2,078 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 dismissed a land appeal because a preliminary objection must rest on undisputed facts, not contested claims like fraud.

What this practically means

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Executive summary

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This was a first appeal against a trial magistrate's ruling of 19th June 2025 dismissing the Appellant's preliminary objection dated 24th February 2025, which had sought dismissal of the Respondent's suit on grounds that it was misconceived, an abuse of process, and that the Respondent lacked locus standi as she had not pleaded representation of her deceased husband's estate, and further that the Respondent had failed to exhaust dispute resolution mechanisms under the Land Adjudication Act. The sole salient issue was whether the preliminary objection was merited. The Appellant, citing Mukisa Biscuit and exhaustion jurisprudence, argued the suit property arose from a first registration under an adjudication section declared in March 2025, so disputes ought to be handled under that Act. The Respondent countered that fraud had been pleaded, which could not be resolved on a preliminary objection, and that the adjudication register had long been closed. Judge E. K. Wabwoto applied the classic Mukisa Biscuit test as reinforced in Nitin Properties, Oraro v Mbaja, Hassan Ali Joho and IEBC v Cheperenger, holding that a preliminary objection must rest on undisputed facts; because the objection sought to challenge disputed facts, including fraud and the Respondent's authority, it failed the threshold. The court found no error in the magistrate's decision and dismissed the appeal in its entirety, awarding the Respondent costs of the appeal assessed at Kshs 30,000/- per section 27(1) of the Civil Procedure Act.

Key legal issues

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01

What constitutes a proper preliminary objection

Holding

The objection must be a pure point of law on undisputed facts; an objection challenging disputed facts does not qualify

Reasoning

The court adopted the Mukisa Biscuit and Nitin Properties formulations, as echoed in Oraro v Mbaja and the Supreme Court's decisions in Joho and Cheperenger. Since the Appellant's objection required the court to ascertain facts such as the Respondent's locus and the plea of fraud, it rested on contested facts and failed the threshold.

p. 1
02

Whether the doctrine of exhaustion under the Land Adjudication Act barred the suit

Holding

The court did not uphold the exhaustion bar because it was raised within an improper preliminary objection founded on disputed facts

Reasoning

The exhaustion argument was advanced as a ground of the preliminary objection. Since the objection itself was not a proper one - it depended on ascertainment of facts such as the closure of the adjudication register and the Respondent's inheritance - the court declined to interfere with the magistrate's dismissal of the objection.

p. 5

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained or if judicial discretion is sought
  • A preliminary objection must be founded on undisputed facts and cannot be based on disputed facts or argumentative postulations
  • A preliminary objection must not be blurred with factual details liable to be contested

Court orders

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  1. 1.The Appeal be and is hereby dismissed.
  2. 2.The costs of the Appeal are awarded to the Respondent and assessed at Kshs 30,000/=

Authorities

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Legislation

  • Land Adjudication ActSection 5
  • Land Adjudication ActSections 19(2) and (3), 21(3), 25, 26 and 29(3)
  • Civil Procedure ActSection 27(1)

Cases cited (13)

  • Mukisa Biscuit vs West End Distributors
    (1969) E.A 696
  • Mutanga Tea & Co. Ltd vs Shikara Limited & Anor
    [2015] eKLR
  • Mwasighwa & 55 Others vs Mbulia Community Land & 3 Others
    [2024] eKLR
  • Tobias Achola Osindi & 13 Others vs Cyprian Otieno Ogallo & 6 Others
    [2013] eKLR
  • John Njoroge Gitau & Others vs George Mwangi Gitau & 3 Others
    [2020] eKLR
  • George Oraro vs Baraka Mbaja
    [2005] eKLR
  • Samuel Mulinge Kyalo & 2 others Ad Director of Land & Others
    (2025) eKLR
  • Nitin Properties Ltd v Singh Kalsi & another
    [1995] eKLR
  • Oraro -v- Mbaja
    [2007] KLR 141
  • Hassan Ali Joho & another -v- Suleiman Said Shabal & 2 Others
    SCK Petition No. 10 of 2013 [2014] eKLR
  • Independent Electoral & Boundaries Commission -v- Jane Cheperenger & 2 Others
    [2015] eKLR
  • Kenneth Shitsugane versus County Government of Kakamega & Another
    [2021] eKLR
  • George Kamau Kimani & 4 Others versus County Government of Trans-Nzoia & Another
    [2014] eKLR
On appeal from
Magistrates' Court (trial court)
Not stated
Jurisdiction invoked
First appeal from the magistrate's court (statutory appeal; specific provision not stated 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, "Matikela v Makato (Environment and Land Appeal E016 of 2025)  (Environment and Land) [2026] KEELC 78 (KLR)", Case Analysis (2026). Environment and Land Appeal E016 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/78/eng@2026-01-14

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