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ELCDismissedELC Appeal No. E030 of 2025

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

Environment and Land Court of Kenya
1 October 2026
1,574 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 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

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Executive summary

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The Appellant, sued as legal representative of the estate of John Ndunda Kioko, filed a memorandum of appeal challenging the subordinate court's adoption of a consent dated 2nd December 2025 as an order of that court, contending that the consent was never served on him or his advocate and that the 6th and 7th Defendants lacked capacity to bind the estate having no letters of administration. He simultaneously sought stay of execution and stay of proceedings. The 2nd and 3rd Respondents raised a preliminary objection seeking striking out of the appeal and applications on the ground that the Appellant lacks locus standi, arguing that only the parties to the consent order - which transferred half of plot UKIA/UTAATI/1046 to the 1st Respondent - could appeal it. The Appellant countered that the objection raised contested facts: whether the consent affected his legal and proprietary interests in the jointly owned property and whether the Respondents had capacity to execute it. Applying Mukisa Biscuit, Oraro v Mbaja and David v Muswii, the court held that the objection hinged on contested matters of fact requiring evidentiary determination and was therefore not a pure point of law. The preliminary objection was dismissed with costs, leaving the appeal and applications to proceed to a full hearing.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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

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Whether the preliminary objection on locus standi was a pure point of law

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The 2nd and 3rd Respondents' preliminary objection is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 5

Costs

Preliminary objection dismissed with costs (costs to the Appellant, against the 2nd and 3rd Respondents)

Quotable passages

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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.
p. 5Final orders - dismissal of preliminary objection
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.
p. 5Test for a valid preliminary objection
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.
p. 5Abuse of the preliminary objection procedure

Issues in the judgment

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minor

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

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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, "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.