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ELCDismissedELC LC E007 OF 2026· [2026] KEELC 5088 (KLR)

Makanyengo v County Government of Homabay & 3 others (Environment and Land Case E007 of 2026) [2026] KEELC 5088 (KLR)

Environment and Land Court
29 July 2026
1,485 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Homa Bay Environment and Land Court dismissed an attempt to strike out a land case, ruling that objections involving facts must be heard on their merits.

What this practically means

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Executive summary

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The 1st and 3rd Defendants raised a Notice of Preliminary Objection under Order 51 Rule 14 of the Civil Procedure Rules, 2010, seeking to strike out the Plaintiff's Notice of Motion dated 23rd February 2026 and, by extension, the entire suit. They advanced three grounds: misjoinder of the 3rd Defendant contrary to Order 1 Rules 9 and 13; failure to issue statutory notice under Section 13A of the Government Proceedings Act; and non-compliance with Sections 79, 80, 81 and 106B of the Evidence Act on public records and electronic evidence. The objection was canvassed by written submissions. J.W. Wanyonyi J applied the settled Mukisa Biscuit test that a preliminary objection must be a pure point of law, uncontaminated by facts or judicial discretion, as reiterated by the Supreme Court in IEBC v Jane Cheperenger. He held that whether the 3rd Defendant was properly joined requires factual examination of the pleadings and, in any event, Order 1 Rule 9 bars defeat of a suit for misjoinder. The Section 13A question turns on the nature of the proceedings and reliefs sought - matters of fact - and he noted authority that a mandatory notice requirement under Section 13A violates Article 48 on access to justice. The Evidence Act ground is an evidentiary question unresolvable in limine. Emphasising that striking out is a draconian remedy reserved for the clearest of cases, the court dismissed the preliminary objection, directed that the Notice of Motion proceed to hearing on its merits, and ordered that costs of the objection abide the outcome of the main application.

Key legal issues

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01

Whether the misjoinder of the 3rd Defendant is a pure point of law justifying striking out

Holding

No - it requires examination of pleadings and facts, and misjoinder cannot defeat a suit under Order 1 Rule 9

Reasoning

Determining whether the 3rd Defendant was properly joined requires examining the pleadings and the role attributed to that party in the impugned transactions, which is a factual inquiry and not a pure point of law. Further, Order 1 Rule 9 of the Civil Procedure Rules expressly provides that no suit shall be defeated by misjoinder or non-joinder, so even if there were misjoinder, the suit would not be rendered incompetent.

p. 3
02

Whether failure to issue statutory notice under Section 13A of the Government Proceedings Act is a proper preliminary objection

Holding

No - applicability of Section 13A depends on the nature of the proceedings, reliefs sought and parties, requiring consideration of facts

Reasoning

The court held that whether Section 13A applies depends on the nature of the proceedings, the reliefs sought, the parties involved and whether the notice requirement is attracted - matters requiring consideration of pleadings and surrounding facts. The court also noted authority that Section 13A, as a mandatory requirement, violates Article 48 on access to justice.

p. 4
03

Whether reliance on documents offending Sections 79, 80, 81 and 106B of the Evidence Act is a pure point of law

Holding

No - compliance with the Evidence Act is an evidentiary question determinable only after documents are produced

Reasoning

Whether documents comply with the Evidence Act's provisions on public records and electronic evidence is fundamentally an evidentiary question that can only be determined after the documents have been produced or relied upon. Such an issue cannot be resolved in limine as a pure point of law, and therefore does not meet the Mukisa Biscuit threshold.

p. 5

Legal principles established

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  • A preliminary objection must consist of a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts require ascertainment or judicial discretion is engaged.
  • No suit shall be defeated by reason of misjoinder or non-joinder of parties.
  • Striking out pleadings is a draconian remedy reserved for the clearest of cases; courts should prefer sustaining proceedings.

Court orders

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  1. 1.The Preliminary Objection is dismissed
  2. 2.The Applicant's Notice of Motion dated 23rd February 2026 shall proceed to hearing on its merits
  3. 3.The costs of the Preliminary Objection shall abide the outcome of the main application
Jurisdiction invoked
Article 162(2)(b) of the Constitution establishing the Environment and Land Court (implied); proceedings under the Civil Procedure Rules, 2010

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, "Makanyengo v County Government of Homabay & 3 others (Environment and Land Case E007 of 2026) [2026] KEELC 5088 (KLR)", Case Analysis (2026). ELC LC E007 OF 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5088/eng@2026-07-29

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