Boniface Ndeti Ndunda (Being sued as Legal Representative of the Estate of John Ndunda Kioko) v Rose Makau (Suing as Legal Representative of the Estate of Makau Mboka) & 2 others
The bottom line
#Kenya's Environment and Land Court dismissed a bid to strike out a land appeal, confirming preliminary objections cannot rely on disputed facts.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 2nd and 3rd Respondents have demonstrated merit in the preliminary objection on a pure point of law and whether the same should be upheld by the court
Key legal issues
#Whether the preliminary objection on locus standi was a pure point of law
It was not; it depended on contested facts including the Appellant's role in the lower court proceedings and the Respondents' capacity to execute the consent
Applying Mukisa Biscuit and Oraro v Mbaja, the court held that a preliminary objection must not be blurred with factual details liable to be contested. Here the objection turned on whether the Appellant was a necessary party to the consent and whether the Respondents had authority to execute it, matters requiring evidentiary determination. Citing David v Muswii, the court found the objection improperly used a preliminary objection to avoid a hearing on the merits.
Legal principles established
#- A preliminary objection must be on a pure point of law and cannot be raised where facts must be ascertained or where judicial discretion is sought
Court orders
#- 1.The 2nd and 3rd Respondents' preliminary objection is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Subordinate court (not specified)
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over the subordinate court's adoption of a consent order (statutory basis not stated in the ruling)
Relief refused
#Striking out of the appeal and applications for want of locus standi
The preliminary objection rested on contested facts and was not a pure point of law
Costs
Preliminary objection dismissed with costs (costs to the Appellant, against the 2nd and 3rd Respondents)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Quite evidently, the preliminary objection herein is devoid of merit and has been improperly raised. It is hereby dismissed with costs.
the preliminary objection is not pegged on a pure point of law. The 2nd and 3rd Respondents' preliminary objection elicits contested matters of fact which will require evidentiary determination to conclude.
It is a classic case of attempting to use a preliminary objection as a sword to avoid resolution of the dispute through a proper hearing and on merits.
Issues in the judgment
#Chronology anomaly: consent dated 2nd December 2025 and PO dated 27th February 2026 in an appeal numbered E030 of 2025, with ruling delivered 1st October 2026
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Boniface Ndeti Ndunda (Being sued as Legal Representative of the Estate of John Ndunda Kioko) v Rose Makau (Suing as Legal Representative of the Estate of Makau Mboka) & 2 others", Case Analysis (2026). ELC Appeal No. E030 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6060/eng@2026-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.