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3. Subsequently, on 11th February, 2026, having guided the parties to canvass the two ( 2 ) objections be canvassed by way of written submissions, the Honourable Court reserved the delivery of a Ruling date to 23rd April, 2026 accordingly. II. The Preliminary Objection by the 1st Interested Party 4. The preliminary objection by the 1st Interested Party was dated 22nd September 2025. The objection raised the following grounds:a. That the Notice of Motion application by the Applicant dated 27th August, 2025 was bad in law and it was not hinged on any main suit. b. That the application before court dated 27th August 2025 be struck out in limine with costs to the 1st Interested Party. III. The Preliminary Objection by the 2nd Respondents 5. The Preliminary Objection by the 2nd Respondent dated 27th September, 2025, was based on the following grounds inter alia: a. That the area was a settlement scheme namely Kwale Mbuguni Phase II which was due for settlement of squatters comprising of the Local community and the Applicant herein a limited liability company never qualified as such a squatter and amenable to allocation of public land at all in terms of the provision of Section 134 (7) of the Land Act, No. 6 of 2012 and Regulation number 6 made under the Act. b. That the land where sand was being harvested was a riparian Land and the Applicant had no known interest to protect as it was part of the riparian land to the level of the high water mark. c. That the Miscellaneous Application was totally in adequate to deal with a matter such as this one as the parties would not have an opportunity to ventilate their grievances. d. That the civil suit - “Petition No ELCPET/E003/2025 at Kwale coming up for directions on 27th October, 2025, was challenging settlement of corporate entities such as the Applicant herein and successful would make a nuisance of the Application herein. e. That once a Judge had heard the first matter afiecting the entire Mbuguni Phase II Settlement Scheme (ELC PET/ E003 of 2025) it would prejudice the hearing of this matter which afiects a fraction of the area, hence should be heard by another Judge for good order or f. That in the alternative and without prejudice the matter be consolidated with “ELC PET/ E003 OF 2025” for hearing and disposal. g. That the application was frivolous, vexatious and an abuse of the court process, in so far as it sought to black mail the 1st Respondent and demanding a share for the proceeds of sand harvesting and nothing more. IV. Directions 6. Initially, as already alluded to above, what was before court was the application dated 27th August 2025 filed by the Plaintifi herein. In response to the application, several pleadings were filed and which included the preliminary objections which are now the subject of this ruling. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2732/eng@2026-04-27 2

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7. Thus, for good order, the Honourable Court directed that the Preliminary objections be as a matter of precedence be dispensed ofi first. Should the objections be successful, they would render further proceeding of a matter unnecessary having disposed ofi the entire suit. 8. Therefore, parties were directed to dispose ofi the two preliminary objections by way of written submissions. By the time of penning down this Ruling, the Honourable Court was unable to access any other Submissions by the other parties as expected. It was only the 1st Interested Party who had filed their written submissions. 9. Nonetheless, the Honourable Court has proceeded to deliver the Ruling as scheduled on its own merit accordingly. A. The Written Submissions by the 1st Interested Party 10. Through the Law firm of Messrs. Kamami Njoroge & Co Advocates filed written submissions dated 30th January 2026 on behalf of the 1st Interested Party. Mr. Mbari Advocate commenced the submissions by stating that the 1st Interested Party had identified one issue for determination. This was - whether a Notice of Motion Application was capable of commencing a suit. Reference was made to the provisions of Sections 2 and 19 of the Civil Procedure Act, Cap. 21 on commencement of suits. The Learned Counsel averred that the application dated 27th August 2025 was filed in the absence of any substantive suit. Consequently, the application lacked a proper basis upon which to stand on as required by law. To buttress on this legal point, reference was made to the dictum in the case of:- “Rajab Kosgei Magut v Nuru Jepleting Choge [2020] eKLR” where the Court held that a suit can only be instituted by way of a Plaint, Petition or an Originating Summons. The Court went further ahead to opine that a Notice of Motion application could only be filed within a properly instituted suit. 11. The Learned Counsel made further reference to the discussions in the case of:- “Lydiah Wanjiru v G. G. Githui & Alliance Eldoret Road Service [2010] KEHC 1852 (KLR)”, where the Court referred to the case of “Board of Governors, Nairobi School v Jackson Ireri Geta (1999) KLR” wherein the Court of Appeal held that a pleading as defined in the provision of Section 2 of the Civil Procedure Act, Cap. 21 included a Petition or Summons; the Statements in writing of the claim or demand of any Plaintifi; the Defence of any Defendant thereto; of the reply of the Plaintifi to any Defence or Counter - Claim of a Defendant as couched in such a way as to accord with the provision of Order 3 Rule 1 of the Civil Procedure Rules, 2010 which prescribed the manner of commencing suits, which rule provided that every suit shall be instituted by presenting a Plaint to the court, or in such other manner as may be prescribed. 12. The 1st Interested Party further contended that the use of the Overriding Principles of law could not be used to remedy the shortfalls inherent in the impugned Application. That the manner of approaching the Court was couched in mandatory terms which go to the root of the Court’s jurisdictions. Towards this argument, the Learned Counsel referred to the case of “Ringera v M’Muga (Miscellaneous Application E003 of 2024) [2025] KEELC 601 (KLR)”, where the Court held that the manner and mode of approaching the court was critical and it went to the root of the jurisdiction of the court. 13. According to Learned Counsel, in making a determination of whether a miscellaneous application not anchored in a suit could be cured by the provision of Article 159 of the Constitution of Kenya, 2010, the Court of Appeal in the case of:- “Scope Telematics Sales International PLC v Stoic Ltd and another [2017] eKLR” held that the provision of Article 159 of the Constitution should not be seen as a panacea to cure all manner of indiscretions relating to procedure. It was maintained that the application was fatally and incurably defective. That the application was an abuse of the Court process as it was filed https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2732/eng@2026-04-27 3

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in contravention to mandatory provisions of law, it was thus devoid of propriety, and it is wanting in bona fides. 14. In conclusion, it was submitted that the impugned Application dated 27th August 2025 by the Applicant be struck out in its entirety, with costs to the 1st Interested Party. V. Analysis and Determination 15. I have carefully read and considered the pleadings herein by the 2nd Respondent and the Interested Party, the myriad of cases cited herein particularly by the 1st Interested Party , the relevant provisions of the Constitution of Kenya, 2010 and statutes. 16. The court will determine both preliminary objections consecutively as the issues raised are difierent. In order to arrive at an informed, just, equitable and reasonable decision, the Honourable Court has three (3) framed issues for its determination. These are: a. Whether the objections raised by the 2nd Respondent and the 1st Interested Party meet the threshold for a Preliminary Objection. b. Whether the preliminary objections dated 22nd and 27th September 2025 by the 1st Interested Party 2nd Respondent respectively is merited c. Who bears the cost of the preliminary objections? ISSUE No. a). Whether the objections raised by the 2nd Respondent and the 1st Interested Party meet the threshold for a Preliminary Objection. 17. Under this Sub – heading the Honourable Court will expansively deliberate on the concept of “Preliminary Objection” and its meritorious nature. 18. According to the Black Law Dictionary a Preliminary Objection is defined as being: “ In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….” 19. The Tanzanian Court of Appeal sitting in Dar es Salaam, in the case of:- “Karata Ernest & others v Attorney General (Civil Revision No 10 of 2020) [2010] TZCA 30 (29 December 2010), (Luanda, JA, Ramadhani, CJ, Rutakangwa, JJA)”, put the issue of preliminary objections in a more concise manner: “ At the outset we showed that it is trite law that a point of preliminary objection cannot be raised if any fact has to be ascertained in the course of deciding it. It only "consists o f a point of law which has been pleaded, or which arises by dear implication out of the pleading obvious examples include: objection to the jurisdiction of the court; a plea of limitation; when the court has been wrongly moved either by non-citation or wrong citation of the enabling provisions of the law; where an appeal is lodged when there is no right of appeal; where an appeal is instituted without a valid notice of appeal or without leave or a certificate where one is statutorily required; where the appeal is supported by a patently incurably defective copy of the decree appealed from; etc. All these are clear pure points of law. All the same, where a taken point of objection is premised on issues of mixed facts and law that point does not deserve consideration at all as a preliminary point of objection. It ought https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2732/eng@2026-04-27 4

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to be argued in the "normal manner" when deliberating on the merits or otherwise of the concerned legal proceedings. 20. 21. Further, I wish to refer to “Attorney General & Another v Andrew Mwaura Githinji & another [2016] eKLR: - as it explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection inter alia: a. A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct. b. A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and c. The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute. This court having been guided by the above authorities on the description of a preliminary objection, it is not in doubt that a preliminary objection raises pure point of law, which is argued on the assumption that all facts pleaded by the other side are correct. However, it cannot be raised if any facts have to be ascertained from elsewhere or the court is called upon to exercise judicial discretion. In the case of “Quick Enterprises Limited v Kenya Railways Corporation, Kisumu HCCC No.22 of 1999”, the court held that: “ When preliminary points are raised, they should be capable of disposing the matter preliminarily without the Court having to result to ascertaining the facts from elsewhere apart from looking at the pleadings.” 22. Similarly, the Supreme Court, in the case of “Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others”, while following the oft-cited “the Classicus locus” decision of “Mukisa Biscuit Manufacturing Co. Limited v West End Distributors Ltd (1969) EA 696, restated the following with regards to what constitutes a preliminary objection: “ a preliminary objection consists of a point of law which has been pleaded or 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 rise to the suit to refer the dispute to arbitration… a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of 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”. 23. Additionally, the Supreme Court in the case of: “Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR”, guided the following:“ ……The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profiigate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2732/eng@2026-04-27 5

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24. Hence, legally speaking, a preliminary objection must be based on pure points of law, must arise from the pleadings, may dispose of the suit if argued as a preliminary point and must be argued on the assumption that all facts pleaded by the opposite party are correct; it cannot succeed if any facts has to be ascertained; or if what is sought is the exercise of the court’s discretion. 25. According to the 2nd Respondent, the suit property subject of the suit before court is an area under the settlement scheme. That it was previously set apart and identified for settlement of squatters and who do not include the Applicant a limited liability company. It was secondly stated that the area where the sand was allegedly being harvested was riparian land and that Applicant has no known interest that ought to be protected over the suit property. 26. Several issues come into play from the above sentiments. The first is to establish whether indeed the area forming the suit property in the suit is indeed a settlement scheme, this is an issue of fact, the aspect of who the Applicant is, is obviously self-explanatory, it is a legal entity and very much separate from its directors who might in their individual capacity probably refer to themselves as squatters but certainly not the company as it is. An issue has also been raised on the area where the contested sand harvesting activities are taking place being riparian land. This again will call for evidence. It is clear that the court has to look beyond the pleadings in order to ascertain the averments as raised by the 2nd Respondent. At this juncture the preliminary objection ceases to be sustainable as the same is not based on pure points of law but rather on evidential facts. ISSUE No. b). Whether the preliminary objection dated 22nd and 27th September 2025 by the 1st Interested Party 2nd Respondent respectively is merited 27. Under this sub – heading, the Honourable Court will proceed to apply the legal principles to the instant case. From the filed pleadings, the 1st Interested Party has claimed that the Applicants’ suit is fatally and incurably defective as it has been instituted by way of a Notice of Motion application which is not a legally recognized means of instituting a suit. 28. As a general rule, a suit can only be instituted by way of a Plaint, a Petition, or an Originating Summons. The provision of Section 19 of the Civil Procedure Act, Cap. 21 states that: “ Every suit shall be instituted in such manner as may be prescribed by Rules.” Likewise Order 3 Rule (i) (ii) of the Civil Procedure Rules 2010 provides that: “ Every suit shall be instituted by way of a Plaint or in such other manner that may be prescribed. As a general rule a suit can only be instituted by way of a Plaint, petition or an Originating summons.” 29. It is instructive to note that the word shall has been used in the above provisions of law and hence the filing of a plaint is a mandatory provision of the law. In the case of:- “Geofirey Ndungu Theuri v Law Society of Kenya [1988] eKLR”, the Court stated as follows: “ …… the order specifically refers to a suit which is defined under section 2 of the Civil Procedure Act in these terms; ‘suit’ means all civil proceedings commenced in any manner prescribed under the Civil Procedure Rules and an applicant is not entitled under Order 30 of the Civil Procure Rules to seek or obtain an order for injunctive relief against another party without filing a suit. The grossly abused Section 3A of the Civil Procedure Act does not give the court the power to act without jurisdiction.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2732/eng@2026-04-27 6

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30. Additionally, in the case of:- “Photo Energy Limited v Hashi Energy Limited Misc. 180 of 2018” the Court stated as follows: “ Order 3 Rule(i) (ii) of the Civil Procedure Rules provides that every suit shall be instituted by way of a Plaint. As a general rule a suit can only be instituted by way of a Plaint, Petition or an Originating summons. A Notice of Motion application is not legally recognized as an originating process. A Notice of Motion can only be filed within a properly instituted suit. The Applicants failed to file any originating process in this matter. I find that the attempt to institute this suit by way of a notice of Motion renders the entire suit defective.” 31. Having perused the documents on record, I have not found any Plaint, Originating Summons, or Petition filed by the Applicant. In my view, issues to deal with ownership of land are substantive ones in nature and cannot be dealt with merely through applications and/or afidavits. They have to be pleaded through the formal known conventional means as stated herein. Also it is noted that the Applicant is apprehensive of the sand harvesting activities taking place on the suit property. These are matters at the heart of environmental protection against degradation as they touch on exploitation of natural resources, a global issue that cannot be downplayed by an application. A case ought to be made with relevant evidence confirming the nature and extent of the said activities if present given the seriousness of the allegations. 32. Based on the foregoing, the court finds that the omission/failure by the Applicants to institute the suit by way of a plaint on which to anchor their application renders the said application fatally defective and therefore a nonstarter. It is this court’s finding that the Preliminary Objection dated 22nd September 2025 is merited. Therefore, the application dated 27th August 2025 ought to be struck out. ISSUE No. c). Who bears the cost of the preliminary objections? 33. It is now well established that the issue of Costs is at the discretion of the Court. Costs meant the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Proviso of Section 27 [1] of the Civil Procedure Rules Cap. 21. provides:“ Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the Court or Judge, and the Court or Judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and give all the necessary directions for the purposes aforesaid; and the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of those powers" 34. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the case of “Harun Mutwiri v Nairobi City County Government [2018] eKLR where the court reafirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. 35. In the case of “Republic v Rosemary Wairimu Munene, Ex - Parte Applicant v Kururu Dairy Farmers Co-operative Society Limited” the Court held:“ The issue of costs is the discretion of the court as provided under the above Section. The basic rule on attribution of costs is that costs follow the event it is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2732/eng@2026-04-27 7

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for compensating the successful party for the trouble taken in prosecuting or defending the case" 36. In the case of “Hussein Muhumed Sirat v Attorney General & Another [2017] eKLR”, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 37. Given the circumstances herein, the court directs that the 1st Interested Party is entitled to costs to be borne by the Applicant for raising the preliminary objections dated 22nd September 2025. 38. Before penning ofi, I wish to state that the proposal to consolidate ELC PET/ E003 of 2025 was duly noted by the court. However given the nature of the findings by this court and the ultimate orders, it will be proper to let the parties pursue the matter separately. The court was also keen on the contents of Ground 5 of the Preliminary Objection dated 27th August, 2025 on a likelihood of Confiict of Interest arising caused by a Judge having heard and determined a related subject matter. In the event that the parties feel the need to have the Petition heard and determined by a difierent court, then a formal application for recusal may be made and the court will then determine the same on merit. VI. Conclusion and Disposition 39. Ultimately, having caused such an in-depth analysis to the framed issues herein, the Honourable Court on the Preponderance of Probabilities and the balance of convenience proceeds to make the following specific orders: a. That the Preliminary Objection dated 27th SE by the 2nd Respondent be and is hereby dismissed. b. That the Preliminary Objection dated 22nd September 2025 by the Interested Party be and is hereby allowed to wit that the Notice of Motion application dated 27th August 2025 by the Applicant be and is hereby struck out and the suit is thus automatically dismissed. c. That costs to be awarded only to the 1st Interested Party for the Preliminary Objection dated 22nd September, 2025 and the suit to be borne by the Applicant herein. It Is Ordered Accordingly. RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 27TH DAY OF APRIL 2026 ……………………………… HON. MR. JUSTICE L.L NAIKUNI, ENVIRONMENT & LAND COURT AT KWALE. Ruling delivered in the presence of: a. Mr. Daniel Disii, the Court Assistant. b. Mr. Edward Mwangi Advocate for the Applicant. c. Mr. Mtana Advocate holding brief for Mr. Gichana Advocate for the 1st Respondent. d. Mr. Bari Advocate holding brief for Mr. Kamamia Advocate for the 1st Interested Party. e. No appearance for the 2nd. 3rd, 4th & 5th Respondents and the 2nd Interested Party. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2732/eng@2026-04-27 8

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