Ethics and Anti-Corruption Commission v Namini & Yagan (Trading as Yanam Investment) & 2 others; County Government of Baringo & 3 others (Interested Parties) (Environment and Land Case E003 of 2025) [2026] KEELC 883 (KLR)

3. The basis of the Plaintifi’s suit is that whereas the land parcel number Eldama Ravine 498/654 and 498/655 (the suit properties) are alienated public land set aside for use within Eldama Ravine as Bus Park/Matatu Terminus, and that although on 30th July 1996 a letter of allotment was issued to the Defendants with condition that payment be made within 30, in 2001 the said properties were illegally and fraudulently registered in the name of the 1st and 2nd Defendants yet the same were not available for alienation and allocation to private individuals. Particulars of fraud have been pleaded in paragraphs 13 as against all the Defendants. In paragraph 15 particulars of breach of fiduciary duties as against the 3rd Defendant have also been pleaded. 4. The Plaintifi seeks Judgment as against the 1st and 2nd Defendants being an order of permanent injunction to restrain them by themselves, their agents, servants employees, assigns and any other persons from charging, transferring, leasing, wasting, entering, developing, sub-dividing, occupying and/or dealing in any manner with the suit properties, an order directing the Chief Land Registrar to cancel the grants issued to the 1st and 2nd Defendants, an order of vacant possession of the suit properties and all the development thereon, general damages, costs and any other relief which this court may deem fit and just to grant. 5. The Plaintifis also filed a Notice of Motion dated 18th March 2025 seeking an order of temporary injunction to restrain the 1st and 2nd Defendants from alienating, selling, advertising for sale, transferring, developing, leasing, sub-dividing, wasting, entering and charging upon or in any way dealing with the suit properties. That application was compromised on 22nd May 2025 by an order of status quo being maintained pending the hearing of this suit. 6. The Defendants subsequently filed a Notice of Preliminary Objection dated 4th April 2025 seeking to have this suit struck out on the following grounds: 1. That the plaint is fatally defective for being un-dated, un-signed and bereft of prayers and mandatory pleadings. 2. The Court lacks the jurisdiction to determine this matter on account of the rule of sub-judice. 3. The suit ofiends the mandatory provisions of sections 104(b), 108 and 114 of the Penal Code as well as the provision of the Statutory Declaration Act. 4. The suit riles against section 11 of the Oaths and Statutory Declarations Act. 5. The suit is an abuse of the court process and should be struck out. 7. When the matter was mentioned before Waithaka, J on 23rd September 2025, the parties agreed that the Preliminary Objection be canvassed by way of Written Submissions. 8. By 19th January 2026 when the matter came up before me to confirm compliance, only Ms Maina Counsel for the Plaintifi had filled her submissions and she informed the court that although Waithaka, J had set time limits, she had not been served with the submissions by the other counsel. I therefore set a ruling date for 16th February 2026 and declined to extend time to Mr Kamau Counsel for the Interested Parties who was still seeking instructions. 9. I have considered the Defendant’s Preliminary Objection as well as the submission by Ms Maina. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/883/eng@2026-02-16 2

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10. A Preliminary Objection, as was held by Sir Charles Newbold P, in the case of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd 1969 E.A 696; “ ….is in the nature of what used to be a demurer. It raises a pure point at law which is argued on the assumption that all the 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”. In the same case, LAW J.A defined it thus: “ So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, and which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving raise to the suit to refer the dispute to arbitration.” 11. The first objection is that the plaint is un-dated, un-signed and is bereft of prayers on mandatory pleadings. I have perused the plaint. It is dated 18th March 2025 and signed by Brigid Maina advocate for the Plaintifi and it has set out the remedies sought by the Plaintifi and which I have also summarized earlier in this ruling. Even assuming that the plaint was not dated or signed, I would not consider that defect to warrant the striking out of the suit. Rather, I would have invoked Article 159 2(d) of the Constitution to allow the Plaintifi’s Counsel time to rectify that omission rather than make such a draconian order of striking out the plaint. That ground collapses. 12. With regard to the ground that this suit is sub-judice, the Plaintifi’s counsel has submitted, and rightly so in my view, that this court has not been provided with the particulars of any other suit pending in any other court between the parties herein over the suit properties. Indeed, if there is any other suit pending in any other court over the suit properties, it should have been pleaded in the defence. I have looked at the defence by the 1st, 2nd and 3rd Defendants and there is no such pleading. This court will therefore conclude that there is no such other suit and therefore, the plea of sub-judice was not raised with any serious conviction. This is because, the rule of sub-judice is defined in section 6 of the Civil Procedure Act as follows: 6. No Court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed”. 13. It follows from the above definition that unless the particulars of any such pending suit are made known to the court, the plea of sub-judice cannot be sustained. That Preliminary Objection will also be dismissed. 14. With regard to the objection that this suit ofiends the mandatory provisions of sections 104 (b), 108 and 114 of the Penal Code, I have read the said provisions. I shall reproduce them for avoidance of doubt. They read: 104. “Any person who a. – https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/883/eng@2026-02-16 3

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b. Without authority assumes to act as a person having authority by law to administer an oath or take a solemn dedication or afirmation or afidavit or to do any other act of a public nature which can only be done by persons authorized by law to do so or” 108: Any person who, in any judicial proceeding or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then pending in that proceeding or intended to be raised in that proceeding is guilty of the misdemeanor/termed perjury.” 114: Any person who swears falsely or makes a false afirmation or declaration before any person authorized to administer an oath or take a declaration upon a matter of public concern under such circumstances that the false swearing or declaration if committed in a judicial proceeding would have amounted to perjury, is guilty of a misdemeanor” Section 11 of the Oaths and Statutory Declaration Act provides for the penalty for false declaration. 15. I have tried to comprehend how the above provisions can support the Defendants’ plea that this suit is sub-judice. Unfortunately, I find nothing in those provisions. Perhaps if the Defendants’ counsel had filed submissions, this court would have benefited from them. But even then, I do not see how those provisions in themselves can be “pure” matters of law since they would need to be qualified with the identities of the persons who have committed the acts or ofiences mentioned therein. 16. The bottom line is that the said provisions cannot support a plea of Preliminary Objection. 17. The up-shot at all the above is that the Preliminary Objection by the Defendants dated 4th April 2025 is devoid of merit. It is in my view what Sir Charles Newbold P had in mind when he said as follows in the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (Supra): “ The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increase costs and, on occasion, confuse the issues. This improper practice must stop”. 18. The Defendants’ Preliminary Objection dated 4th April 2025 is dismissed with costs to the Plaintifi. BOAZ N. OLAO JUDGE RULING DATED, SIGNED AND DELIVERED BY WAY OF ELECTRONIC MAIL ON THIS 16TH DAY OF FEBRUARY 2026. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/883/eng@2026-02-16 4

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