Kimuli & another v Mutondya & 2 others (Land Case E001 of 2025) [2025] KEELC 7947 (KLR)

too which the 2nd respondent responded vide a replying afidavit dated 3/2/2025. Contemporaneously with the filing of the replying afidavit, the objection now under consideration was filed. Submissions: 3. The objection was canvassed via written submissions. The 1st and respondent’s submissions are dated 11/2/2025. The respondents pointed out that the appellants are not the registered owners of the disputed land. They are relatives of the 1st respondent. The disputed land itself was said to be nonexistent. It ceased to exist through implementation of a court order issued in case No. 083 of 2024 MC ELC, Kitui. As the defendants are not the registered owners of parcel No. 1445, they are said to have no locus to “bring this suit.” 4. It was submitted also that injunctive orders cannot issue in respect of land that does not exist. The order would be incapable of execution even if issued because the land does not exist. The appeal filed by the appellants was said to be “frivolous, vexatious, and devoid of merit.” In the submissions, reliance was placed on the cases of Mukisa Biscuits Manufacturing Co. Ltd. –vs- Westend Distributors Limited [1969] EA 696 and Alfred Njau & Others –vs- City Council of Nairobi [1982] KAR 229. 5. The appellants’ submissions are dated 24/2/2025. The submissions start with a summation which, inter alia, makes reference to the lower court process that gave rise to the appeal now before this court. The appellant took issue with lack of clarity manifest on the face of the objection as filed. It was suggested that the respondents wanted to say that there is lack of locus standi but that is not what the objection filed communicates. The 1st respondent was said to be the registered owner of the land and the appellants do not bring the suit as registered owners but against the registered owners. It was submitted that it is not correct take the view that a person cannot file a suit concerning a parcel of land unless such person is the registered owner. Yet this incorrect View is the one seemingly espoused by the respondents. 6. The appellants also submitted that the objection as formulated and filed is not a proper objection in law. The case of Mukisa Biscuit Manufacturing Co. Ltd. –vs- Westend Distributors Ltd [1969] EA 696 was cited and quoted to make the point that a proper preliminary objection is one that raises a pure point of law and that the point of law should be based on admitted or indisputable facts. Where what is brought as a preliminary objection requires interrogation or probing by the court, then such objection cannot pass muster as a proper preliminary objection. 7. The appellants pointed out that it is a self-contradictory averment by the respondents to say on the one hand that parcel No. KISASI/MBITINI/445 does not exist while on the other hand asserting that the registered owner of that same piece of land is alive and opposed to the application before this court. 8. Further, it was submitted that the objection should have been filed before the lower court. 9. This court was urged to dismiss the objection with costs. 10. I have considered the preliminary objection, the rival submissions, and the appeal as filed generally. What is before this court is an appeal against dismissal by the lower court of an interlocutory application for restraining orders. The main suit is still pending in the lower court and the substance of that suit is not suficiently well known by this court. 11. As pointed out by the appellants, the first limb of the preliminary objection seems amiss in the manner it is formulated. But it is important to appreciate that the submissions filed by the respondents seem to cure what is amiss by introducing the word “lack” before the words “locus standi.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7947/eng@2025-10-16 2

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12. I am in general agreement with the appellants and here is why: The two limbs of the objection are not based on undisputed or uncontested facts. It appears clear that there is a contention between the parties concerning ownership and even existence of parcel No. 1445. While the point raised by the respondents seems weighty and fit for consideration in the entire matter, the fact that it is contended requires that each side should be allowed to articulate its position by way of evidence before the court can pronounce itself on the issue. 13. It appears to me also that the for purposes of this appeal, the critical point for consideration concerning the issue of locus standi should be whether it is the appellants who lost in the application in the lower court and not whether the land is not registered in their names. The fact of dismissal of the lower court application gives them the right of appeal and that right itself comes with the necessary locus standi. In my considered view, it is in the lower court, if at all, where the issue of locus standi targeting the suit should be raised so that if the court finds merit in it, the suit can be dismissed. And this is the same position regarding the second limb of the preliminary objection. 14. It is crucial also to appreciate that a preliminary objection cannot be raised where what is sought involves the exercise of judicial discretion. In Muiruri –vs- Kimemia [2002] 2 KLR 677 the court held, inter alia, that a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law urged on the basis all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought “is the exercise of judicial discretion.” This same position was succinctly stated in the case of Sirma –vs- Kiprono [2005] 1 KLR 197. 15. Further, in Oraro –vs- Mbaja [2005] 141, the court observed as follows: “ A preliminary objection correctly understood is now well defined as, and declared to be, a point of law which must not be blurred by factual details, liable to contested, and in any event to be proved through the process of evidence. Any assertion which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seek to adduce evidence for its authentication is not as a matter of legal principle, a true preliminary objection which the court should allow to proceed.” 16. The preliminary objection raised herein was in response to an application for restraining order. A restraining order is a discretionary remedy. The granting or refusal of that remedy involves the use of judicial discretion and in my view, the respondents were wrong to raise a preliminary objection in response to it. Secondly, and as pointed out earlier, the objection as raised is hinged on contested facts. That runs afoul of the legal positions spelt out in the cases already cited herein. 17. Ultimately, it can clearly be seen that the points raised by the respondents may be useful for consideration at the end of the suit but certainly not as preliminary objection. I think at this stage it is useful to remind ourselves of the words of the Court of Appeal in the case of Eunice Karimi Kibunja –vs- Mwirigi M’Ringera Kibunja: C.A. No. 103 of 1996. The court observed: “ The issue before the court clearly required a full hearing and we reiterate that he practice of raising points, which should be argued in the normal manner, by way of a preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse issues. A preliminary objection cannot be raised if any fact has to be ascertained.” 18. The upshot in light of the foregoing, is that what is brought before the court as a preliminary objection should be dismissed. And I hereby dismiss it with costs to the appellants. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7947/eng@2025-10-16 3

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RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AT KITUI THIS 16TH DAY OF OCTOBER, 2025. A. KANIARU JUDGE- ENVIRONMENT & LAND COURT, KITUI In the presence of, Court Assistant – Musyoki Nzioka for 1st Respondent Nzioka also for 2nd Respondent Kilonzi for Mwendwa for the Appellant Appellant – absent Respondent - absent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7947/eng@2025-10-16 4

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