Mathenge v Maina & another (Environment and Land Case 566 of 2014) [2026] KEELC 5347 (KLR)
The bottom line
#A Kenyan land court paused a decades-old case because suing a company in liquidation needs the High Court Insolvency Division's permission first.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to grant leave to continue proceedings against a company in liquidation
The ELC cannot grant leave under Section 432(2); only the High Court Insolvency Division can. The PO on this ground succeeds.
The court adopted Eboso J's reasoning in Bernard Kamau Mbugua that allowing every court to grant leave would compromise orderly liquidation. Section 2 of the Insolvency Act defines 'court' as the High Court and, where an insolvency division exists, that division. Since the 2nd Defendant is in liquidation, these proceedings can only continue with the Insolvency Court's approval, which the ELC cannot give.
Effect of voluntary liquidation on the leave requirement
Voluntary liquidation does not exempt a party from the leave requirement under Section 432(2).
The Plaintiff argued the liquidation was voluntary, not ordered by the court. The court held that the provision applies to all forms of liquidation once a company is in liquidation, and rejected the argument that the mode of commencement matters. The Official Receiver had similarly submitted the requirement applies to all forms of liquidation.
Whether the suit is time-barred under Section 4(4) of the Limitation of Actions Act
The Tribunal award, adopted as a court order in 2000, is time-barred after twelve years; however, striking out is not ordered because the Court of Appeal reinstated the suit for hearing on a priority basis.
The court found the suit against the 2nd Defendant subsisted and the Plaintiff should have enforced the decree, but the award adopted on 21st July 2000 exceeded the twelve-year limit. Nonetheless, because the Court of Appeal in Civil Appeal No. 110 of 2019 expressly reinstated the suit for hearing on a priority basis, the court declined to strike it out on limitation alone.
Definition and scope of a preliminary objection
A preliminary objection is a point of law which, if upheld, disposes of the suit, per Mukisa Biscuit.
The court cited Black's Law Dictionary and the classic Mukisa Biscuit formulation, that a preliminary objection consists of a point of law pleaded or arising by clear implication from the pleadings which may dispose of the suit.
Legal principles established
#- Proceedings against a company in liquidation may be begun or continued only with the approval of the High Court (Insolvency Division) under Section 432(2) of the Insolvency Act, and the Environment and Land Court lacks jurisdiction to grant such leave
- The leave requirement under Section 432(2) applies regardless of whether the liquidation was voluntary or court-ordered
- An action may not be brought upon a judgment after the end of twelve years from the date of delivery of the judgment (Section 4(4), Limitation of Actions Act)
Court orders
#- 1.The preliminary objection succeeds in respect of the first two preliminary points (jurisdiction under Section 432(2) of the Insolvency Act and limitation)
- 2.The Plaintiff's Notice of Motion dated 9th February 2024 is found incompetent and not granted
- 3.The proceedings are paused (stayed) until the Insolvency Court grants leave to proceed with the matter
- 4.Costs in the cause
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court); Insolvency Act, Section 432(2) and Section 2 (definition of 'court'); Limitation of Actions Act, Section 4(4)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mathenge v Maina & another (Environment and Land Case 566 of 2014) [2026] KEELC 5347 (KLR)", Case Analysis (2026). ELC NO 566 OF 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5347/eng@2026-08-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.