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ELCPartially AllowedPetition dated 5/01/2024 (number not stated in judgment)· [2026] KEELC 1007 (KLR)

Maundu v Musangi & another (Environment and Land Petition E001 of 2024) [2026] KEELC 1007 (KLR)

Environment and Land Court
24 February 2026
AKA. Y. Koross
1,846 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 Environment and Land Court ruling at Machakos, delivered by Hon. A. Y. Koross, J on 24 February 2026, dealt with preliminary objections by the first and second respondents seeking to strike out the petitioners' constitutional petition on grounds of res judicata, functus officio, incompetence, want of a public-law threshold and lack of jurisdiction, together with the petitioners' motion dated 20/02/2025 for leave to amend the petition. The court first struck out the petitioners' submissions for breaching page-limit directives, citing the Supreme Court's decision in Okoiti. On the motion, applying Rule 18 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, the court held that amendments are freely allowed at any stage where necessary to determine the real issues, absent undue delay, new cause of action or prejudice. Since the matter had not passed pretrial directions, leave to amend was granted, with respondents at liberty to respond. On the POs, the court applied the Mukisa Biscuit test as affirmed by the Supreme Court in Aviation & Allied Workers Union, holding that the grounds on res judicata, functus officio and jurisdiction depended on facts requiring evidence and prior decisions that should have been brought by notice of motion. The POs were dismissed, with liberty granted to the respondents to raise jurisdiction by formal application within 14 days. Timetables for the amended petition and responses were issued and costs were made costs in the cause.

Key legal issues

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01

Whether the petitioners should be allowed to amend their petition

Holding

Leave to amend granted; the matter is at a preliminary stage, pleadings not closed, and amendment would serve the interests of justice.

Reasoning

Rule 18 of the Mutunga Rules permits amendment at any stage with leave. The court exercises judicious discretion, permitting amendments needed to ascertain the real issues, absent undue delay, new cause of action, or prejudice. The matter had not undergone pretrial directions, and the first respondent himself conceded the court's discretion; respondents were also granted leave to respond.

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02

Whether the preliminary objections satisfy the legal threshold

Holding

The POs are dismissed; the grounds on res judicata, functus officio and jurisdiction depend on factual matters requiring evidence and cannot be raised as preliminary objections.

Reasoning

Applying Mukisa Biscuit and Aviation & Allied Workers Union, a PO must be a pure point of law on agreed facts. The respondents' grounds relying on prior decisions (Kising'u Kinyili v Gerald Musangi; Kising'u Kinyili v Ministry of Lands) required factual ascertainment and should have been raised by formal motion with the decisions exhibited, allowing the petitioners to respond.

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Legal principles established

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  • A preliminary objection must be a pure point of law argued on the assumption that all pleaded facts are correct; it cannot be raised where facts must be ascertained or discretion exercised.
  • Leave to amend pleadings is granted where it serves the interests of justice, causes no injustice or prejudice, and introduces no new or conflicting cause of action.
  • Where a preliminary objection depends on factual matters such as prior decisions, the proper course is a formal notice of motion with supporting material, giving the other side an opportunity to respond.

Court orders

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  1. 1.The petitioners shall, within 14 days from the date hereof, file and serve the amended petition on all the parties.
  2. 2.The respondents shall thereafter be at liberty to file their responses within fourteen (14) days of service of the amended petition.
  3. 3.The respondents' POs dated 12/03/2024 and 13/09/2024 are hereby dismissed.
  4. 4.The respondents are hereby granted leave to file formal applications within 14 days hereof, raising the issue of whether this court has jurisdiction to entertain the entire petition.
  5. 5.Costs shall be in the cause.
Jurisdiction invoked
Original constitutional petition jurisdiction; Amendment jurisdiction under Rule 18 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Maundu v Musangi & another (Environment and Land Petition E001 of 2024) [2026] KEELC 1007 (KLR)", Case Analysis (2026). Petition dated 5/01/2024 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1007/eng@2026-02-24

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