Mwito Housing Cooperative Society Limited v Isaac Tumpes Ntaiya, Kipkurui Ngeno & Attorney General

RULING 1. Before the Court is a Preliminary Objection dated 2nd March 2026 filed by the 2nd Defendant, seeking to strike out the Plaintiff's suit on the ground that the Plaintiff lacks locus standi to institute and maintain the proceedings. 2. Counsel submits that the Plaintiff subdivided parcel Kajiado/Kitengela/107328 and transferred it to other individuals. As such the said property which is the substratum of the suit is no longer in existence and the Plaintiff lacks locus to institute the suit which he has no interest in. Reference is made to Rugiri v Kinuthia & 3 others [2024] KECA1601 (KLR), Law Society of Kenya v Commissioner of Lands & 2 others [2001] KEHC 831 (KLR), Rogito v Mogaka & another [2025] KEELC 2948 (KLR) and Maina & 87 others v Kagiri [2014] KECA 880 (KLR) among others. 3. At the time of writing this Ruling, the Plaintiff had not filed its submissions. RULING ELC NO. E087 OF 2025 Page 2 of 11

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4. The sole issue for determination is whether the preliminary objection is merited. 5. It is trite that a preliminary objection should be on pure points of law, or facts that can be determined on the face of the pleadings as held in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others [2020] KESC 54 (KLR): “… 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.” 6. The 2nd Defendant claims that the Plaintiff has no locus in the suit having subdivided and disposed of parcel Kajiado/Kitengela/107328. The substance of the objection is that the Plaintiff, having subdivided the original suit property and sold and/or allocated the resultant subdivisions to its beneficiaries, it ceased to have any proprietary interest RULING ELC NO. E087 OF 2025 Page 3 of 11

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in the suit property and consequently lacks the requisite standing to maintain the present proceedings. 7. The Court has considered the Preliminary Objection. In my view, two questions arise for determination: o Whether the question of the Plaintiff's locus standi, in the circumstances of this case, constitutes a proper preliminary objection; and o Whether the Plaintiff ceased to possess sufficient interest in the subject matter because the original property was subdivided and the resultant parcels sold and/or allocated to its beneficiaries. 8. The principles governing preliminary objections are settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the Court held that a preliminary objection consists of a pure point of law which arises from the pleadings and which, if successfully argued, may dispose of the suit. Such an objection RULING ELC NO. E087 OF 2025 Page 4 of 11

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proceeds upon the assumption that the facts pleaded by the opposite party are correct. It cannot properly be raised where a fact has first to be ascertained. 9. The same principle was reiterated in Oraro v Mbaja [2005] 1 KLR 141, where the Court emphasized that a preliminary objection ought not to be blurred with factual matters which are liable to contestation and which require proof by evidence. 10. There is no doubt that locus standi may, in an appropriate case, constitute a point of law capable of determination preliminarily. The mere characterization of an objection as one concerning locus standi, however, does not automatically make it a pure point of law. The Court must examine the foundation upon which the alleged want of locus is predicated. 11. In the instant case, the Defendant's contention is founded upon the assertion that the Plaintiff subdivided and disposed of the suit property and consequently ceased to enforcement. RULING ELC NO. E087 OF 2025 Page 5 of 11 possess any legal interest capable of

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12. That contention immediately raises questions concerning the nature and effect of the subdivision and subsequent transactions. The Court would have to determine, among other matters, the nature of the Plaintiff's interest in the parent parcel, the circumstances under which the subdivision was undertaken, the relationship between the Plaintiff and the beneficiaries, whether the whole parcel was transferred and titles issued; what obligations remained upon the Plaintiff following such allocation, and the nature of the boundary process undertaken before the Land Registrar. 13. Those matters cannot, in the circumstances before me, be conclusively determined from the proposition that the land was transferred and titles issued. These are matters whose legal effect is intertwined with facts which may require interrogation at the hearing. 14. To this extent, the objection does not satisfy the strict test in Mukisa Biscuit and Oraro v Mbaja. A Court determining a preliminary objection cannot embark upon RULING ELC NO. E087 OF 2025 Page 6 of 11

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an evidentiary inquiry in order to establish the facts necessary to sustain the objection. 15. On the second issue, the Plaintiff is a Housing Cooperative Society. Its pleaded case is not merely that it once owned land which it subsequently disposed of and with which it now has no connection. The Plaintiff's case, as disclosed in the Plaint, is that it caused the original property to be subdivided and transferred for the benefit of its beneficiaries and that, notwithstanding that subdivision, the beneficiaries have been unable to take possession of their respective portions because of the alleged failure by the Land Registrar to determine and/or fix the relevant boundaries. 16. The Plaintiff before this Court is the Co-operative Society which, according to its pleadings, dealt with the parent property, caused its subdivision and allocated and/or sold the resultant portions to its beneficiaries. The grievance pleaded is that an outstanding boundary determination has prevented those beneficiaries from RULING ELC NO. E087 OF 2025 Page 7 of 11

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taking possession of the parcels emanating from that subdivision. 17. Sections 18 and 19 of the Land Registration Act, 2012 vest important statutory functions concerning ascertainment and fixation of boundaries in the Land Registrar. 18. Section 18(2) expressly restricts the Court from entertaining proceedings relating to a dispute as to boundaries of registered land unless those boundaries have first been determined in accordance with the statutory procedure. 19. Section 19, on the other hand, provides for the procedure by which the Registrar may ascertain and fix boundaries, including upon an application made by an interested person. 20. The significance of those provisions for present purposes is not to determine, at this interlocutory stage, whether the Plaintiff will ultimately establish its case against the RULING ELC NO. E087 OF 2025 Page 8 of 11 Land Registrar. That is a matter for

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determination upon consideration of the evidence and the reliefs sought. 21. Rather, they demonstrate that the Plaintiff's pleaded grievance relates to an alleged outstanding statutory process concerning the subdivisions emanating from the original property. Whether the Plaintiff made the relevant application, whether the Registrar failed to act upon it, whether the Plaintiff qualifies as an interested person for purposes of that process, and what legal consequences arise therefrom are matters which cannot be conclusively determined through the present Preliminary Objection. 22. It would therefore be premature for the Court, upon the assertion that the Plaintiff subdivided and disposed of the property, to conclude that it ceased to possess any interest whatsoever in the completion of the process concerning the resultant subdivisions. 23. The Defendant placed considerable emphasis on the averment in the Plaint that it is the beneficiaries who have been unable to take possession of the respective parcels. I do not consider that fatal to the Plaintiff's standing. It is RULING ELC NO. E087 OF 2025 Page 9 of 11

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entirely possible for the beneficiaries to possess direct proprietary interests in the resultant parcels while the Plaintiff Co-operative Society simultaneously retains a sufficient legal interest in matters arising from the subdivision and allocation process undertaken for the benefit of those beneficiaries. 24. Whether any particular relief sought in the Plaint can ultimately be granted in the absence of the individual beneficiaries is a separate question to be addressed later. Similarly, whether the beneficiaries are necessary parties whose joinder may be required for the complete adjudication of particular issues is a matter which may be considered at the appropriate stage. 25. In the end, I find that at this stage, the Defendant has not demonstrated that the Plaintiff's subdivision and subsequent allocation and/or sale of the resultant parcels, without more, extinguished every legal interest that the Plaintiff possesses proceedings. RULING ELC NO. E087 OF 2025 Page 10 of 11 in the subject matter of these

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26. I therefore find that the Preliminary Objection is devoid of merit and is dismissed with costs to abide the outcome of the main suit. Dated, Signed and Delivered virtually at Kajiado this 24th day of September 2026. JUDY OMANGE JUDGE. IN THE PRESENCE OF: Ms. Tomno for Mr. Kirui for 2nd Defendant. Peter – Court Assistant. RULING ELC NO. E087 OF 2025 Page 11 of 11

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