Kifonda & 3 others v Ngona & 12 others (Environment and Land Case E096 of 2025) [2026] KEELC 2886 (KLR)

AND MALINDI SOLAR .............................................................. 1ST INTERESTED PARTY KENYA ELECTRICITY TRANSMISSION COMPANY LIMITED (KETRACO) ....................................................................... 2ND INTERESTED PARTY REGISTRAR OF LANDS, KILIFI ................................... 3RD INTERESTED PARTY COUNTY GOVERNMENT OF KILIFI .......................... 4TH INTERESTED PARTY RULING 1. The Defendants filed a Preliminary Objection (PO) dated October 5, 2025, to this suit and prayed that the suit be dismissed with costs on the following grounds: a. That the suit herein is brought in contravention of Order 1 Rule 8 of the Civil Procedure Rules because the suit was brought by the aversion as Members of Weru Group Ranch, without adducing any evidence of membership or authority from members to bring the suit before this Honorable court. b. That the suit herein violates Order 1 Rule 10 of the Civil Procedure Rules because the Plaintifis have failed to join all parties whose presence before the court is necessary to enable the court to adjudicate efiectively and completely upon the issues raised. These parties include members of Weru Group Ranch and all parties afiected by the cancellation of subdivisions upon Kilifi/ Weru/19 and Kilifi Weru/20. c. That the suit herein violates Order 7 Rule 11 of the Civil Procedure Rules because there is no reasonable cause of action against the defendants that entitles the Plaintifi to any recourse d. That the suit herein ofiends Section 46 of the Community Lands Act regarding matters commenced under the repealed Land (Group Representatives) Act and all other relevant transitional provisions thereto. e. That the suit herein falls squarely within the doctrine of laches. 2. The PO is supported significantly by the Interested Parties. 3. The Plaintifis oppose the PO on the following grounds: a. That the Preliminary Objection is misconceived, frivolous, and an abuse of the court process, and is based on a misapprehension of the law and facts. b. That the Preliminary Objection has been improperly invoked to challenge disputed facts that require evidentiary proof. c. That the objection does not present a pure question of law but instead invites this Honorable Court to make findings on contested factual issues. d. That the Plaintifis have not brought the suit in a representative capacity under Order 1 Rule 8 of the Civil Procedure Rules, but rather in their own individual capacities as legal and/or beneficial owners of portions of the parcels of land comprising Weru Group Ranch, whose rights and interests have been directly infringed by the Defendants' illegal actions https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2886/eng@2026-04-30 2

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e. That the issue of capacity and authority to sue is a question of fact, ascertainable only through evidence, and therefore cannot be properly raised or determined by way of a preliminary objection. f. That the allegation of non-joinder of necessary parties under Order 1 Rule 10 is similarly factual and cannot be determined at the preliminary stage, and in any event, joinder or nonjoinder of parties is not a ground for striking out a suit under Order 1 Rule 9 of the Civil Procedure Rules. g. That the objection alleging the absence of a cause of action under Order 7 Rule 11 is misplaced and premature, as the Plaintifis' plaint discloses a clear and reasonable cause of action against the Defendants, inter alia, for illegal transactions involving the suit properties. h. That the invocation of Section 46 of the Community Land Act is erroneous because the Plaintifis' suit is properly grounded in ongoing violations of their individual proprietary and beneficial rights. The cited transitional provisions do not oust this Honorable Court's jurisdiction. i. That the doctrine of laches does not apply to continuing and recurrent violations of land rights, which constitute ongoing breaches incapable of being defeated by delay. In any event, the issue of laches is a factual matter requiring evidence and is therefore not a proper subject for a preliminary objection. j. That the Preliminary Objection is an attempt to defeat the ends of justice and to delay the fair hearing of the Plaintifis' suit, contrary to the overriding objectives under Sections 1A and 1B of the Civil Procedure Act. 11. k. That the issues raised by the Defendants can be canvassed only through evidence at trial and not by way of a Preliminary Objection. l. That it is in the interests of justice, equity, and fairness that the Defendants' Notice of Preliminary Objection dated October 5, 2025, be dismissed with costs. 4. The Court directed that the PO be canvassed through written submissions. I acknowledge receipt of submissions from the counsel for the plaintifi, the defendant, and some of the Interested Parties with much appreciation, as they went a long way toward assisting the Court in reaching a determination on the issues raised in the PO. 5. Based on the materials and submissions before me, the issues for this Court's determination are whether the PO is sustainable, whether the grounds canvassed by the Defendants warrant disposing of the current suit solely on those grounds, and who should bear the costs. 6. The Defendants in their PO contend that the Plaintifis lack locus standi to institute and entertain the suit as filed; that, under Section 3A of the Civil Procedure Act, Cap 21, no person may institute a suit unless they have a present, existing, and legally enforceable right; that the suit herein is brought in contravention of Order 1 Rule 8 of the Civil Procedure Rules (the CPR) because the Plaintifis have brought the suit as Members of Weru Group Ranch without adducing any evidence of membership or authority from members of Weru Group Ranch to bring the suit before this Court; that the court will take judicial notice that the prayers sought in the Plaintifis’ Plaint are representative of the whole Ranch; that it is instructive that the Plaintifis failed to seek the authority and consent of the Community members, especially those who have already procured their individual titles, to seek such orders; that the bare minimum should have been a notice issued to members of Weru Group Ranch and any other parties with any form of interest in the land the court is called upon to address. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2886/eng@2026-04-30 3

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7. Defendants aver that the Plaintifis have not provided a substantive pleading establishing their representative capacity to file the suit. However, the nature of the substantive orders they seek suggests such capacity, and the only indication is a parenthetical statement in the title. This is clearly insuficient under the law. Moreover, if the Plaintifis intended to claim their individual portions of the land they supposedly own, such claims would have been clearly presented to the Court. 8. Lastly, the Defendants assert that the doctrine of laches bars the case due to undue delay. The Court is urged to take judicial notice that the Community Land Act took efiect on 21 September 2016, six years after the members' resolution to dissolve and subdivide. As of the date of the Plaintifis' originating document on 24th July 2025, the members' resolution had been in efiect for fifteen (15) years. The Plaintifis' allegation regarding the elections of oficials dates back to 1996, twenty-nine (29) years after the cause of action arose. 9. Conversely, the Plaintifis aver that the issues raised are not pure points of law, and that the issues raised will elicit a probe. 10. Plaintifis aver that Defendants' objections cannot be resolved without examining contested factual issues. Whether the Plaintifis have the requisite authority, whether they have demonstrated membership, whether the proper parties have been joined, and whether a reasonable cause of action exists are matters that can only be resolved upon the tender of evidence. These issues cannot be isolated from the factual matrix of the entire dispute filed by the Plaintifis and, as such, fall squarely outside the narrow compass of a PO as stated in the Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. 11. The Plaintifis state that the Defendants dispute the Plaintifis' foundational facts, including matters relating to representation, authorization, and the nature of the relationship between the parties. Accordingly, it is submitted that once a party invites the Court to question or interrogate the truth, suficiency, or existence of facts, as the Defendants do here, their objection cannot conscientiously be deemed to meet the threshold of a pure point of law. A PO must assume the correctness of the opposing party's factual averments, yet the Defendants' position directly contradicts this requirement. 12. Plaintifis further assert that the allegations of non-compliance with Order 1, Rules 8 and 10 of the Civil Procedure Rules are inherently factual inquiries that require the Court to evaluate evidence regarding membership, the nature of the community represented, and whether certain individuals ought to be joined. These matters cannot be resolved in limine. They call for the Court's discretionary assessment upon a fuller evidentiary record, a process wholly inconsistent with the purpose and nature of a PO. 13. Similarly, the issue raised under Order 7 Rule 11, that the Plaintifis have no reasonable cause of action, cannot be resolved without considering the factual background and examining the substance of the pleadings. Determining whether a plausible cause of action exists requires a careful reading of the Plaintifis' factual allegations and supporting material, which again removes the matter from the province of pure points of law. 14. The Plaintifis conclude that, therefore, a PO is not the appropriate vehicle to challenge the factual merits of the current claim. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2886/eng@2026-04-30 4

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15. As submitted by the parties, the jurisprudence on PO in Kenya is firmly anchored in the seminal decision of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where Law JA held that: “ 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.” 16. In the same case, Sir Charles Newbold P., as he then was, further expounded: “ 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.” 17. In the Independent Electoral & Boundaries Commission v. Cheperenger & 2 others [2015] KESC 2 (KLR), the Supreme Court alluded to when a PO can be raised: “ Thus, a preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.” 16. It is quite clear that a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law. (see Hassan Nyanje Charo v. Khatib Mwashetani & 3 Others, Civil Application No. 14 of 2014, [2014] eKLR). 18. Applying the Mukisa Biscuits standard in this matter, I agree with the Plaintifis' assertion that the Defendants raise factual issues rather than pure points of law. The Defendants allege that the Plaintifis' suit ofiends various provisions of the law, specifically Order 1 Rule 8 of the Civil Procedure Rules for filing the suit without providing evidence of membership and/or authority from members to bring the suit; Order 1 Rule 10 for failure to enjoin all parties whose presence is necessary before the Honorable Court; Order 7 Rule 11 of the Civil Procedure Rules for lack of reasonable cause of action against the Defendants; and Section 46 of the Community Land Act. All these matters require a probe and cannot be dealt with in limine. 19. This is so concerning the issue of larches. This Court cannot tell whether the Weru Group Ranch dissolved and, if so, how. Did it transition to Community Land, or how were the individual titles obtained? Those will be issues for trial. 20. Consequently, the PO dated October 5, 2025, is without merit and is hereby dismissed with costs. DATED, SIGNED, AND ELECTRONICALLY DELIVERED IN NYERI ON THIS 30TH DAY OF APRIL, 2026. E. K. MAKORI JUDGE In the presence of: Ms. Mbassu for the Plaintifis https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2886/eng@2026-04-30 5

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Mr. Githara for the Defendants Ms. Otokoma for the 3rd Interested Party Mr. Nkonge for the 4th Interested Party Ms. Muranjuri for the 5th Interested Party Kendi: Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2886/eng@2026-04-30 6

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