Kirui & another (Suing in their capacities as the personal representatives of Musa Kipkirui Chumo - Deceased) v Mbaka & 11 others (Environment and Land Case E001 of 2026) [2026] KEELC 3299 (KLR)
The bottom line
#The Environment and Land Court in Kericho ruled that an advocate joined over a land deal must stay in the case, with limitation and jurisdiction questions decided at trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection on limitation is a proper pure point of law
It is not; limitation requires ascertainment of facts and evidence and must be determined at trial
Relying on Ushago Diani Investment Limited v Abdulwahab citing Oraro v Mbaja, the court held that a preliminary objection must not be blurred with contested factual details. Because whether the claim against the advocate accrued in 2018 or on later discovery of fraud turns on facts, the limitation defence cannot be resolved summarily as a preliminary objection.
Whether the Third Party Notice discloses no reasonable cause of action and the advocate should be struck out
No; the propriety of the joinder and the merits of the Third Party Notice should be raised at the hearing
The court observed that the 2nd Third Party was properly joined on 3rd October, 2024 after the court was satisfied there was a proper question to be tried, per Family Bank Limited v Mutisya. The applicant's challenge invites the court to assess the merits of the Third Party Notice, which cannot be done at a preliminary stage.
Whether the Environment and Land Court lacks jurisdiction over an alleged professional negligence/indemnity claim against an advocate
Not determined at this stage; whether the Third Party Notice raises land issues or professional negligence is best addressed at the hearing
The applicant argued that a professional negligence claim falls outside the ELC's jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act, while the respondent argued jurisdiction is determined by the nature of the principal land dispute. The court declined to resolve this characterization question preliminarily, deferring it to trial.
Legal principles established
#- A preliminary objection must raise a pure point of law and cannot rest on facts requiring proof through evidence
- The defence of limitation of time is a matter for determination at the trial on evidence, not at a preliminary stage
- A third party is joined where there is a proper question to be tried as to the liability of the third party and the defendant
Court orders
#- 1.The Preliminary Objection dated 20th November, 2025 is dismissed with costs
- 2.The Notice of Motion application dated 13th November, 2025 is dismissed with costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act (jurisdiction of the Environment and Land Court); interlocutory application under Sections 3 & 3A of the Civil Procedure Act and Order 1 Rule 10(2), Order 2 Rule 15(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kirui & another (Suing in their capacities as the personal representatives of Musa Kipkirui Chumo - Deceased) v Mbaka & 11 others (Environment and Land Case E001 of 2026) [2026] KEELC 3299 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3299/eng@2026-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.