Mulwa v Ruto & 3 others (Environment and Land Appeal E031 of 2024) [2026] KEELC 3976 (KLR)

3. The appellants, after entering an appearance on 8/10/2024, filed a preliminary objection dated 15/10/2024, stating that the appellants lacked capacity to be sued in the matter as they were not the legal representatives of the estate of their deceased father, who is the registered owner of the suit land. By a ruling dated 18/12/2025, the trial court found the preliminary objection unmerited. 4. The appellants have come to this court through a memorandum of appeal dated 31/12/2024, faulting the trial court for not upholding the preliminary objection. 5. This court directed that the parties were to canvass the appeal by written submissions to be filed by 31/5/2026. 6. The role of this court on appeal is to re-evaluate, review, and reappraise the lower court record and come up with independent findings as to the facts and the law. See Selle -vs- Associated Motor Boat Co. & others [1968] E.A 7. Arising from the record, grounds of appeal, and the written submissions, the two issues for my determination are whether the appellants had met the threshold of a preliminary objection and whether the trial court applied the law to the facts before it to reach the impugned decision. 8. A preliminary objection is a pure point of law argued on the basis that what is pleaded is correct, admitted, or uncontested. See Mukisa Biscuits Manufacturing Company Ltd -vs- West End Distributors Ltd (1969) EA 696. It may dispose of a suit. See Hassan Nyanje Charo -vs- Khatib Mwashetani & 3 others [2014] eKLR. 9. It is a settled principle of law that only a party with locus standi may competently sue or be sued. From the lower court record, the appellants filed a preliminary objection that they had no capacity to be sued for the land in dispute, since the suit land is registered in the name of their deceased father, whom they do not represent by dint of the Law of Succession Act. 10. In Kinuthia (Through the Administrators of His Estate) -vs- Anyanga & 6 others (Petition E004 of 2025) [2025] KESC 60 (KLR) (17 October 2025) (Ruling), at issue was whether the deceased appellant had standing to appear through administrators, who were neither disclosed nor properly identified in the pleadings. 11. The Supreme Court looked at the pleadings in the initial superior court, showing that one Charles Gitonga Kinuthia appeared as the son and co-administrator of the appellant’s estate. 12. There had been no formal application for substitution and for the letters of administration. The Supreme Court said that any defect in the formal citation on record amounted to a procedural irregularity curable under Article 159 (2)(c) of the Constitution, particularly where the identities of the parties are clear and undisputed. 13. In Oraro -vs- Mbaja [2005] KLR 141, the court held that a preliminary objection must not be blurred with factual details liable to be contested or proved through evidence. A court, when faced with a preliminary objection, if it is a pure point of law, need not engage in investigating the disputed facts. A preliminary objection that derives its foundation from factual information cannot be a pure point of law. 14. From the lower court record, other than the preliminary objection, the appellants had not filed any other pleadings. Similarly, the appellants had not filed a list of documents, including the oficial search certificate for the suit land, among other documents, to confirm the registered owner of the land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3976/eng@2026-06-29 2

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15. The suit by the respondent raises a cause of action based on alleged threats to the occupation of the suit land by the appellants, threatening to chase the respondents away. 16. The respondent seems to blame the appellants and the Land Registrar for the issuance of a title deed in the name of the deceased on 6/6/2017, yet he had died in 2007, to defeat his beneficial interest in the suit land, which he acquired after the mutual agreement in 1974. 17. At the lower court, the appellants had not filed pleadings to challenge the legal or factual basis of the claim as framed by the respondent. The issue of capacity to be sued alongside the Land Registrar, in my view, under the circumstances, was not and is not a pure point of law. It required the exercise of the court’s discretion and also factual evidence to be sustained. 18. The court has looked at the submissions filed by the appellants at the lower court dated 8/11/2024. They are referring to evidence attached in the plaint and in the replying afidavit, sworn on 31/12/2024 by the 2nd appellant. The trial court, in my considered view, based its ruling on the prevailing jurisprudence that a preliminary objection is not based on contested matters of fact to be ascertained through evidence. 19. The upshot is that I find the appeal lacking merit. It is dismissed with costs to the respondent. 20. Orders accordingly. JUDGMENT DATED, SIGNED AND DELIVERED, VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 29TH DAY OF JUNE 2026. In the presence of: Court Assistant - Dennis Miss Ruto for the appellants present Karani for the respondents absent HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3976/eng@2026-06-29 3

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