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ELCOtherNot stated in judgment· [2026] KEELC 1690 (KLR)

Musa (Suing as the Personal Representative of the Estate of Amina Chepkemboi Mwalimu – Deceased) v Rotich & 8 others (Environment and Land Case 89 of 2021) [2026] KEELC 1690 (KLR)

Environment and Land Court
23 March 2026
GOG.M.A. ONG'ONDO
610 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court allowed defendants to withdraw their preliminary objection without costs, so the main land dispute will now proceed to a full hearing.

What this practically means

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Executive summary

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The plaintiff sued the defendants by a plaint last amended on 21st June 2023 seeking, among other orders, a mandatory injunction in respect of land reference numbers Nandi/Kamobo/4501, 2622, 2632 and 1493. In response, the 3rd, 4th, 5th and 8th defendants, through Rotich Langat and Partners Advocates, filed a notice of preliminary objection dated 17th March 2026 contending that the plaintiff lacked locus standi, having neither beneficiary nor ownership interests, allegedly having been ousted by the Kadhi's court in the primary succession. They relied on the Court of Appeal decision in Rugiri v Kinuthia and the Alfred Njau v City Council of Nairobi definition of locus standi, and sought dismissal of the suit with costs as an abuse of process. At the hearing, Mr. Rotich sought to withdraw the preliminary objection, reserving the issues for the defendants' statement of defence. Counsel for the plaintiff and the 9th defendant raised no objection. The court, citing Asanyo & others v Attorney General, held that parties are at liberty to withdraw a matter before court and that the court has power to allow withdrawal, aligning the withdrawal with Article 159(2)(b) of the Constitution, that justice shall not be delayed. The preliminary objection was accordingly marked as withdrawn with no orders as to costs. The substantive suit remains pending for hearing on the pleadings, with the locus standi issues reserved for the defence.

Key legal issues

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01

Whether a party may withdraw a preliminary objection before determination

Holding

Yes. The defendants were permitted to withdraw the preliminary objection, reserving the issues for the statement of defence, since withdrawal was aimed at expediting the hearing of the suit.

Reasoning

Counsel for the 3rd, 4th, 5th and 8th defendants sought to withdraw the preliminary objection, reserving the issues for the defence. The plaintiff and 9th defendant raised no objection. The court invoked the principle that parties are at liberty to withdraw matters (Asanyo & others v Attorney General) and aligned the withdrawal with Article 159(2)(b) of the Constitution that justice shall not be delayed. The objection was marked withdrawn with no orders as to costs.

p. 2

Legal principles established

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  • Parties are at liberty to withdraw a matter before the court, and the court has the power to allow such withdrawal.

Court orders

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  1. 1.The preliminary objection dated 17th March 2026 is marked as withdrawn with no orders as to costs
Jurisdiction invoked
Original civil jurisdiction over land matters (suit by plaint in respect of Nandi/Kamobo land parcels)

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, "Musa (Suing as the Personal Representative of the Estate of Amina Chepkemboi Mwalimu – Deceased) v Rotich & 8 others (Environment and Land Case 89 of 2021) [2026] KEELC 1690 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1690/eng@2026-03-23

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