Makanyengo v County Government of Homabay & 3 others (Environment and Land Case E007 of 2026) [2026] KEELC 5088 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the misjoinder of the 3rd Defendant is a pure point of law justifying striking out
No - it requires examination of pleadings and facts, and misjoinder cannot defeat a suit under Order 1 Rule 9
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.
Whether failure to issue statutory notice under Section 13A of the Government Proceedings Act is a proper preliminary objection
No - applicability of Section 13A depends on the nature of the proceedings, reliefs sought and parties, requiring consideration of facts
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.
Whether reliance on documents offending Sections 79, 80, 81 and 106B of the Evidence Act is a pure point of law
No - compliance with the Evidence Act is an evidentiary question determinable only after documents are produced
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.
Legal principles established
#- 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
#- 1.The Preliminary Objection is dismissed
- 2.The Applicant's Notice of Motion dated 23rd February 2026 shall proceed to hearing on its merits
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.