Boniface Ndeti Ndunda (Being sued as Legal Representative of the Estate of John Ndunda Kioko) v Rose Makau (Suing as Legal Representative of the Estate of Makau Mboka) & 2 others

involving land where only the 1st, 2nd and 3rd Respondents have an interest in. It was argued that only the parties who are subject to the consent order have a right to appeal against it if they so desire. Counsel was of the view that the 1 st, 2nd and 3rd Respondents were the competent parties when entering the consent order being the only parties concerned with the suit property and not the Appellant. Citing the case of Lekupe & 2 others v County Government of Marsabit & 5 others; Lentilal & 6 others (Proposed Interested Parties) [2025] KEELC 3277 (KLR), Counsel urged the court to dismiss the appeal as the Appellant lacks locus standi. 6. In the Appellant’s submissions dated 20th April, 2026, Counsel submitted that the preliminary objection calls for the determination of contested facts particularly whether the impugned consent affected the Appellant’s legal interests and whether the Respondents had the capacity to enter into the consent. It was contended that these are not pure points of law but matters requiring evidentiary interrogation. 7. Counsel explained that in the primary suit, the suit property is jointly owned by the Appellant’s deceased father and his deceased aunt. It was contended that the impugned consent purports to alienate an undefined portion of that property which directly implicates the Appellant’s legal and proprietary position. Citing the case of Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55, Counsel submitted that a party has locus standi where a decision affects their legal rights or interests. 8. Counsel submitted that the preliminary objection herein fails to meet the threshold outlined by the Court of Appeal in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and as such, it must be dismissed with costs. ELC APPEAL NO. E030 OF 2025 2|Page

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9. The sole issue for determination is whether the 2 nd and 3rd Respondents have demonstrated merit in the preliminary objection on a pure point of law and whether the same should be upheld by the court. 10.The 2nd and 3rd Respondents argued that the appeal is premised on a matter where the 1st, 2nd and 3rd Respondents reached a consent order in open court on 2nd December, 2025 in favour of the 1st Respondent. Elaborating further on the consent order, it was contended that it was agreed that half share of plot number UKIA/UTAATI/1046 belonging to Kavuu Kioko Kaluvu be transferred and registered in the name of the 1 st Respondent. On the whole, the Respondents argue that the Appellant lacks locus standi to bring the appeal. 11.Submitting against the preliminary objection, the Appellant insists that the impugned consent order is centered on contested facts resting with the Appellant’s role in the lower court proceedings and whether the same affected his legal interests. The Appellant contended that the preliminary objection is not based on a pure point of law and therefore fails to meet the legal threshold. 12.The law on preliminary objections is settled. A preliminary objection must be on a pure point of law. Justice Law coined an apt description of what constitutes a preliminary objection in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 (at page 700) wherein the learned judge held as follows: “In so far as I am aware, 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.” 13.In the same case, Sir Charles Newbold, P. held as follows: ELC APPEAL NO. E030 OF 2025 3|Page

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“The first matter relates to the increasing practice of raising points which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurrer. It raises a 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 had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.” 14.In Oraro v Mbaja [2005] eKLR, J.B. Ojwang J. described it as follows: “I think the principle is abundantly clear. “A Preliminary Objection” correctly understood is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. An assertion which claims to be a Preliminary Objection and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true Preliminary Objection which the Court should allow to proceed.” 15.Having considered the arguments advanced in the rival submissions, it is evident that the Appellant wishes to challenge the merits of the consent order executed by Counsel on behalf of the 1st, 2nd and 3rd Respondents. As part of his argument that the appeal is competent, the Appellant argued that his grounds of appeal go to the substance of the consent order in that the authority of the 1 st, 2nd and 3rd Respondents to execute the consent has been called into question. It was also argued that the impugned consent affects his legal and proprietary interests in the suit property as he was one of the Defendants in the primary suit. The Appellant disputes the legitimacy of the consent in purporting to alienate an undefined portion of the suit property without according to him due process. ELC APPEAL NO. E030 OF 2025 4|Page

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16.Upon review of the merits of the rival arguments, there is absolutely no doubt that the character of the preliminary objection herein hangs on contested matters of fact ranging from the eligibility of the Respondents to execute the consent to the failure to accord the Appellant a fair hearing on the subsequent execution. The Appellant is of the view that being a primary party in the lower court proceedings, he was entitled to be heard on a matter affecting his rights in the suit property. 17.On the basis of the divergent perspectives on whether the Appellant was a necessary party in the execution of the consent, it is clear that the preliminary objection is not pegged on a pure point of law. The 2 nd and 3rd Respondents’ preliminary objection elicits contested matters of fact which will require evidentiary determination to conclude. 18.In the case of David & 5 others v Muswii (Civil Appeal 525 of 2019) [2026] KECA 375 (KLR), the Court of Appeal observed as follows: “We think that if there ever was a case where the caution by the courts against frivolous preliminary objections should have been heeded, it is in this case. It is a classic case of attempting to use a preliminary objection as a sword to avoid resolution of the dispute through a proper hearing and on merits.” 19.Quite evidently, the preliminary objection herein is devoid of merit and has been improperly raised. It is hereby dismissed with costs. ............................................... HON. E. O. OBAGA, FCIArb JUDGE RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 1ST DAY OF OCTOBER, 2026. ELC APPEAL NO. E030 OF 2025 5|Page

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IN THE PRESENCE OF: Mr. Maundu for Appellant Mr. Muinde for Respondent Court assistants – Kilonzo and Musyoki ELC APPEAL NO. E030 OF 2025 6|Page

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