https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4915

Ngumba v Magu & another (Environment and Land Case E060 of 2025) [2026] KEELC 4915 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEELC 4915 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Case E060 of 2025 JA Mogeni, J July 30, 2026 Between Anne Wangechi Ngumba Plaintiff and John Kabugo Magu 1st Defendant Ndarugu Githobokoni Development Company Ltd 2nd Defendant Ruling 1.The 2nd Defendant raised a Preliminary Objection dated 4/07/2025 citing misjoinder and non-joinder of parties at the Court appearance on 12/02/2026 where it was directed to serve the 1st Defendant and vide the Affidavit of Service sworn 23/02/2026 confirmed service. In the Preliminary Objection the 2nd Defendant raised the following grounds:-1.That the Plaintiff's suit, and Supporting Affidavit to wit Plaint, Witness Statement, and List of Documents are convoluted.2.That there is apparent non-joinder of the registered owner of the suit properties.3.That joinder of the Vendor as a Defendant is necessary for effectual adjudication of all the matters in controversy in the suit. The decree cannot be effective without the absent party.4.That on the face of Pleadings, the Plaintiff has not demonstrated by permissible evidence any apparent breach by the 2nd Defendant to warrant joinder of issues.5.That on the face of the Pleadings, the Plaintiff has not demonstrated by permissible evidence any apparent breach by the 2nd Defendant to warrant joinder of issues.6.That the 2nd Defendant has no fault whatsoever in the Plaintiff's misadventure in filing a premature suit, which should be dismissed with costs. 2.The Plaintiff in response filed written submissions dated 28/07/2025. In the submissions the Plaintiff gave a brief background of the case and stated that she instituted this suit by way of a Plaint dated 11/04/2025, seeking, inter alia, declarations of ownership over Plot Numbers 223, 224, 225, 226, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243 and 244 within L.R. Nos. 41418/274–290 and L.R. No. 4148/19662, collectively referred to as the suit properties. Alongside the declaratory relief, the Plaintiff sought an order compelling the 2nd Defendant to register her as the sole proprietor of the suit properties and to issue certificates of title in her favour, as well as injunctive relief restraining both Defendants from dealing with the said properties. The Plaintiff simultaneously filed an application under a Certificate of Urgency on the same date. 3.According to the Plaintiff, she submits that her case is founded on an agreement entered into with the 1st Defendant in or around 2008, and on transactions conducted with the 2nd Defendant as the vendor of the suit properties. The Plaintiff avers that notwithstanding the joint registration of the suit properties with the 1st Defendant, the mutual understanding between the parties was that she was to be the sole beneficial owner and was to take exclusive possession thereof. The Plaintiff further pleads that both Defendants have failed to facilitate the transfer of the suit properties into her sole name, and that the 1st Defendant has in bad faith attempted to dispose of the properties without her knowledge or consent. 4.I have scanned the Case Tracking System (CTS) and did not see any Replying Affidavit from the Plaintiff/Respondent in response to the Preliminary Objection instead the Plaintiff filed written submissions dated 28/07/2025. 5.in her submissions she frames the singular issue for this Honourable Court's determination as being whether the 2nd Defendant's Preliminary Objection meets the legal threshold of a valid Preliminary Objection in law and warrants the striking out of the Plaintiff's suit. In addressing this threshold question, the Plaintiff anchors the legal standard governing Preliminary Objections on the celebrated decision in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, which established that a Preliminary Objection raises a pure point of law argued on the assumption that all the facts pleaded by the other side are correct, and that it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. Drawing from this authority, the Plaintiff proceeds to demonstrate, ground by ground, that the 2nd Defendant's Preliminary Objection fails to satisfy any of these requirements. 6.On the first ground, the Plaintiff submits that the 2nd Defendant's assertion that the Plaint, Witness Statement, List of Documents and Supporting Affidavit are convoluted is fundamentally a factual and pleading sufficiency matter rather than a pure point of law. The Plaintiff contends that for this Court to determine whether the pleadings are convoluted, it would necessarily be required to interrogate their content an exercise that constitutes a factual inquiry wholly outside the permissible scope of a Preliminary Objection. In support of this position, the Plaintiff invokes the decision of Hon. Justice J. B. Ojwang in Oraro v Mbaja [2005] KEHC 3182 (KLR), where the learned Judge, in dismissing the applicant's Preliminary Objection, pronounced with clarity that anything that purports to be a Preliminary Objection must not deal with disputed facts, and must not itself derive its foundation from factual information which stands to be tested by the normal rules of evidence. The Plaintiff urges this Court to apply that principle directly to the instant ground. 7.The Plaintiff further submits that the allegation of convoluted pleadings is, in any event, without foundation on the facts. The Plaint contains precise factual averments including the dates of the relevant transactions going back to the year 2008, clearly identified land reference numbers and plot numbers, the identities of all parties involved, particular breaches complained of, and a specific chronology of events culminating in an attempted disposal of the suit properties in March 2025. These averments, the Plaintiff submits, are far from convoluted and demonstrate a clear and coherent cause of action. 8.The Plaintiff goes on to submit that had the 2nd Defendant genuinely found the pleadings unclear, the proper and legally prescribed recourse available to it was to seek further and better particulars under Order 2 Rule 10 of the Civil Procedure Rules 2010, or to seek directions at the case management conference under Order 11, or to request particulars before the case management conference under Order 11 Rule 8(a) of the Civil Procedure Rules 2010. Alternatively, the 2nd Defendant could have applied for an amendment under Order 8 Rule 5 of the Civil Procedure Rules 2010. The invocation of a Preliminary Objection was not the appropriate procedural vehicle for this complaint. The Plaintiff further observes that the 2nd Defendant has not demonstrated any prejudice or inability to frame a defence, and that the pleadings are in fact clear and are supported by key documentary exhibits including sale agreements, plot certificates, receipts, bank cheques and demand letters. 9.Turning to the grounds of non-joinder of the registered owner, failure to join the Vendor as a Defendant, and alleged misjoinder of the 2nd Defendant, the Plaintiff submits that these grounds are both legally untenable and procedurally impermissible as grounds of Preliminary Objection. The Plaintiff grounds this submission firmly in the provisions of Order 1 Rule 9 of the Civil Procedure Rules 2010, which provides in mandatory and unambiguous terms that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and that the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Plaintiff further draws the Court's attention to Order 1 Rule 10(2) of the Civil Procedure Rules 2010, which empowers the Court to add or strike out parties at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just, so as to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit. 10.The Plaintiff invites this Court to be guided by the decision of my brother Hon. Justice Dr. Jacob Gakeri in Maureen Onsongo v EOH Limited and EOH/Copy Cat Limited Company [2021] KEELRC 676 (KLR), where the learned Judge dismissed a Preliminary Objection that sought to strike out a suit on the ground that the respondent was not a proper party. The Court in that case invoked Article 159(2)(d) of the Constitution of Kenya, 2010, which provides that justice shall be administered without undue regard to procedural technicalities, and further relied on the principle established in DT Dobie Company (Kenya) Ltd v Joseph Muchina & Another [1980] eKLR to the effect that Courts of law are enjoined to sustain suits rather than terminate them on technicalities, unless the case appeared so hopeless and beyond redemption as to be incapable of being salvaged. 11.The learned Judge in Maureen Onsongo (supra) concluded that Order 1 Rule 9 of the Civil Procedure Rules is couched in mandatory terms on the issue of misjoinder, that the appropriate remedy for the respondent would have been to move the Court to have the name of the improperly joined party struck out of the proceedings, and that misjoinder cannot be said to have rendered the suit so hopeless that it cannot be salvaged by an amendment of the pleadings, which may be done at any time before judgment pursuant to Order 1 Rule 10(2). 12.The Plaintiff further urges the Court to be guided by the decision of Hon. Lady Justice M. Onyango in Mtai & 9 Others v Anglican Church of Kenya & 2 Others [2025] KEELRC 1988 (KLR), in which the learned Judge, while citing the Court of Appeal decision in William Kiprono Towett & 1597 Others v Farmland Aviation Ltd, Marco Dunn & Toby Dunn (Civil Appeal 247 of 2011) [2016] KECA 301 (KLR) and the High Court decision in Consolata Kihara & 241 Others v Director Kenya Trypanosomiasis Research Institute [2003] KEHC 940 (KLR), allowed the appeal and set aside the trial Court's decision dismissing the appellants' suit, substituting it with an order dismissing the Preliminary Objection. The Court held in that case that Courts have consistently held the issue of misjoinder or non-joinder to be one that cannot be raised in a Preliminary Objection, as such failure can be cured by an amendment to the pleadings, and that a suit would not fail for the mere reason of misjoinder. 13.The Plaintiff additionally relies on the decision in Civicon Ltd v Kivuwatt Ltd & 2 Others [2015] eKLR, where the Court, in addressing the rules on joinder of parties, held that the power given under the Rules is discretionary and must of necessity be exercised judiciously, with the objective of bringing on record all persons who are parties to the dispute relating to the subject matter so that the dispute may be determined in their presence without protraction or inconvenience, and to avoid a multiplicity of proceedings. The Plaintiff draws from these authorities the governing principles that non-joinder or misjoinder does not defeat a suit, that the remedy lies in an amendment or an application for joinder or striking out, and that such questions are discretionary, fact-sensitive and not proper for determination by way of Preliminary Objection. 14.The Plaintiff further submits that in any event, the Plaint expressly pleads that the suit properties were purchased from the 2nd Defendant, or from persons who had purchased them from the 2nd Defendant, and that plot ownership certificates were issued by the 2nd Defendant to both the Plaintiff and the 1st Defendant. This, the Plaintiff contends, squarely places the 2nd Defendant at the very centre of the impugned transactions, and the reliefs sought are directed specifically at the 2nd Defendant, including an order compelling it to register the Plaintiff as sole proprietor. The 2nd Defendant is therefore a proper and necessary party to these proceedings and its joinder cannot be characterised as a misjoinder. The Plaintiff additionally submits that the question of who the registered owner is and whether there are any competing registrations is a matter of fact that cannot be resolved at the Preliminary Objection stage. 15.On the fifth ground, the Plaintiff submits that the 2nd Defendant's contention that the Plaintiff has not demonstrated by permissible evidence any apparent breach to warrant joinder of issues is not a proper ground for a Preliminary Objection. The Plaintiff argues that this ground improperly invites the Court to interrogate the pleadings and assess the sufficiency or weight of the evidence, an exercise that is quintessentially reserved for trial. The Plaintiff reiterates the governing principle drawn from the Mukisa Biscuit authority that the purpose of a Preliminary Objection is to raise a pure point of law taken on the assumption that all the facts pleaded by the opposing party are true, and that where the Court is required to evaluate evidence or interrogate facts, the objection ceases to qualify as a true Preliminary Objection in law. 16.The Plaintiff again invokes the decision in Oraro v Mbaja [2005] KEHC 3182 (KLR), where Hon. Justice Ojwang held that a Preliminary Objection is a point of law which must not be blurred with factual details liable to be contested and to be proved through the processes of evidence, and that any assertion which claims to be a Preliminary Objection but 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. The Plaintiff submits that whether the 2nd Defendant breached any obligation to the Plaintiff is the central factual controversy for determination at trial, and that the Plaint expressly pleads the relevant transactions, the issuance of plot ownership certificates, and the 2nd Defendant's failure to effect transfer of the suit properties into the Plaintiff's sole name. These allegations, if proved, constitute breaches, but whether or not they are ultimately established is a matter strictly reserved for trial. 17.On the sixth and final ground, the Plaintiff submits that the 2nd Defendant's contention that the suit is premature and misconceived because the Plaintiff has not demonstrated fault on its part is an attempt to introduce into a Preliminary Objection issues that are entirely evidentiary and merit-based. The Plaintiff submits that whether or not the 2nd Defendant is at fault is not a matter of law apparent on the face of the pleadings but is rather a factual question that can only be resolved upon the taking and evaluation of evidence at trial. The Plaintiff's case is premised on specific averments of transactions with the 2nd Defendant, the issuance of plot certificates by the 2nd Defendant, and its subsequent refusal or failure to effect transfers into the Plaintiff's sole name, all of which sufficiently disclose a cause of action. 18.The Plaintiff further submits that the Plaint clearly discloses that a formal demand was made on 21st March 2025 and that an attempted disposal by the 1st Defendant occurred in or around March 2025, thereby giving rise to both urgency and the cause of action. The Plaint additionally avers that no other proceedings are pending in respect of the suit properties. The Plaintiff contends that the existence of formal demand letters and the recent attempted disposal conclusively removes any foundation for the contention that the suit is premature. This ground, the Plaintiff submits, fails to raise a pure point of law and improperly seeks to prejudge the merits of the Plaintiff's case without trial, which is entirely outside the scope of a Preliminary Objection. 19.On the sixth and final ground, the Plaintiff submits that the 2nd Defendant’s contention that the suit is premature and misconceived because the Plaintiff has not demonstrated fault on its part is an attempt to introduce into a Preliminary Objection issues that are entirely evidentiary and merit-based. The Plaintiff submits that whether or not the 2nd Defendant is at fault is not a matter of law apparent on the face of the pleadings but is rather a factual question that can only be resolved upon the taking and evaluation of evidence at trial. The Plaintiff's case is premised on specific averments of transactions with the 2nd Defendant, the issuance of plot certificates by the 2nd Defendant, and its subsequent refusal or failure to effect transfers into the Plaintiff's sole name, all of which sufficiently disclose a cause of action. 20.The Plaintiff further submits that the Plaint clearly discloses that a formal demand was made on 21/03/2025 and that an attempted disposal by the 1st Defendant occurred in or around March 2025, thereby giving rise to both urgency and the cause of action. The Plaint additionally avers that no other proceedings are pending in respect of the suit properties. The Plaintiff contends that the existence of formal demand letters and the recent attempted disposal conclusively removes any foundation for the contention that the suit is premature. This ground, the Plaintiff submits, fails to raise a pure point of law and improperly seeks to prejudge the merits of the Plaintiff's case without trial, which is entirely outside the scope of a Preliminary Objection. 21.In the end, the Plaintiff submits that the 2nd Defendant's Preliminary Objection does not in any of its six grounds meet the legal threshold of a valid Preliminary Objection. The grounds raised either require factual inquiry, are matters of judicial discretion, or are curable by amendment and joinder under the Civil Procedure Rules, and cannot in law defeat the Plaintiff's suit at this interlocutory stage. The Plaintiff therefore urges this Honourable Court to dismiss the 2nd Defendant's Preliminary Objection dated 4/07/2025 with costs to the Plaintiff, to direct that the 2nd Defendant files its Defence within fourteen days from the date of the ruling, and to grant any further or alternative relief that this Court may deem fit and just in the circumstances of this matter. 22.The 2nd Defendant filed their submissions dated 9/10/2025. The 2nd Defendant urges this Honourable Court to find that the grounds of the Preliminary Objection raise cogent points of law, and that those grounds stem from and are generated by apparent flaws in the Plaintiff's pleadings as they appear on the record. The 2nd Defendant contends with emphasis that lack of clarity in pleadings is not a mere procedural technicality but a fundamental flaw that cannot be wished away summarily. That the instant suit as framed is untenable and ought not to be allowed to proceed. 23.According to the 2nd Defendant/Applicant they submit that the Plaint as filed is convoluted, thereby clouding the issues in dispute and hindering its ability to rebut the claims made against it. They contend that the particulars of negligence attributable to it are obscured and insufficiently stated in the pleadings. It is their submission that the onus rests squarely on the Plaintiff to clearly demonstrate that the Defendant owed a duty, failed to meet the requisite standard of care, and caused the damages complained of. To them, they hold the view that the Plaintiff has wholly failed to discharge this burden in the pleadings as presented to this Court, and the resulting obscurity in the pleadings fundamentally impairs the 2nd Defendant's capacity to mount a meaningful and effective Defence. 24.The 2nd Defendant further submits that the filed lawsuit and the accompanying application violate the fundamental principle of procedural fairness, which requires that the parties to a suit be clearly discernible and identifiable from the pleadings. The Applicant contends that Courts aim for efficient and fair dispute resolution, and that unclear and convoluted pleadings work directly against this objective by causing unnecessary delay and prejudice to the parties against whom such defective pleadings are directed. The 2nd Defendant submits that the pleadings as filed fail to meet the standard of clarity that procedural fairness demands, and that this failure is not a curable irregularity but a substantive defect that goes to the root of the suit. 25.They further submit that the that the suit as instituted constitutes a blatant breach of the procedural provisions of the law, and specifically invokes Order 4 Rule 1(1)(f) of the Civil Procedure Rules, which the 2nd Defendant submits is categorical in its requirement that the cause of action must specifically relate to the parties named in the suit. They further contend that the Plaintiff's pleadings have manifestly failed to satisfy this mandatory statutory requirement, in that the cause of action as pleaded does not adequately and specifically relate to the 2nd Defendant in the manner that the law demands. 26.At the core of the submissions is the assertion that, ab initio, the 2nd Defendant was merely an agent of the Seller, that is the original registered owner of the suit properties, and that it acted at all material times solely in the capacity of a selling agent at the request and instance of the original registered owner. That all the transactional documents, comprising the Sale Agreements and Transfer instruments, were executed by the Seller and the 1st Defendant and were witnessed by the Seller's Advocates. The 2nd Defendant is emphatic that it was not privy to the conveyance of the subject properties, including the drafting and execution of the contracts and transfer documents, the payment of the requisite fees and taxes, and the final registration of the transfer at the relevant land registry. 27.They further submit that it is and was at all material times an independent contractor acting solely as a selling agent and was only entitled to a commission upon conclusion of the transaction. That in fact they are shocked that, the original registered owner, who executed the requisite transfer instruments, has either by design or by default not been made a party to the suit. The 2nd Defendant contends that this apparent and deliberate omission of a pivotal party vitiates the pleadings and leaves the Plaintiff clutching at straws, with no sustainable cause of action against the 2nd Defendant as properly constituted in these proceedings. 28.That it is trite law that the determination of any pertinent issue has a direct nexus or domino effect on the subject matter before the Court. Therefore, the apparent obscurity and deficiency in the pleadings can lead to procedural injustice to its detriment, and reiterates with emphasis the submission that lack of clarity in pleadings is not a mere procedural technicality but a fundamental flaw that cannot be wished away summarily. It urges this Honourable Court to take cognisance of all applicable procedural laws governing the institution of suits, for their full purport and import. 29.That more than a mere narrative is required to advance a prima facie case or claim before this Court. Thus, that the elements of each cause of action and the supporting particulars must be identifiable and stated clearly, so that the Defendants know precisely what claims are being advanced against them, thereby defining the scope of documentary and oral discovery as well as the ultimate disposition of the action. The 2nd Defendant therefore contends that the Plaintiff's pleadings fall manifestly short of this standard and that the failure to clearly articulate the cause of action as against the 2nd Defendant specifically renders the suit unsustainable at its foundation. 30.In closing the 2nd Defendant concludes its submissions by urging this Honourable Court to find that the Plaintiff's pleadings are manifestly defective, lack substratum, and ought to be struck out. The 2nd Defendant submits that the grounds of the Preliminary Objection, taken individually and collectively, disclose cogent points of law arising from the apparent flaws on the face of the Plaintiff's pleadings, and that those flaws are of such a fundamental character as to render the suit untenable and incapable of proceeding to a full hearing on the merits. Final Analysis and Disposal 31.I have carefully considered the Preliminary Objection dated 4/07/2025 raised by the 2nd Defendant, the written submissions of both parties, and the authorities cited therein. The threshold question for determination is whether the grounds raised by the 2nd Defendant constitute a valid Preliminary Objection in law. In this regard, I am guided by the principle that a Preliminary Objection must raise a pure point of law, determinable on the assumption that all the facts pleaded by the opposing party are correct, without the need to ascertain any fact or exercise judicial discretion. 32.Examining the grounds raised by the 2nd Defendant against this standard, I find that none of them satisfies this threshold. The assertion that the pleadings are convoluted is not a point of law but an evaluative judgment requiring this Court to read, assess and interrogate the content of the Plaint and supporting documents a quintessentially factual exercise. The grounds of non-joinder and misjoinder are equally disqualified from being raised as a Preliminary Objection by reason of the mandatory provisions of Order 1 Rule 9 of the Civil Procedure Rules 2010, which declares in unambiguous terms that no suit shall be defeated by reason of the misjoinder or non-joinder of parties. 33.As was trenchantly observed by the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, a Court seized of a Preliminary Objection must resist the temptation to be drawn into a factual inquiry under the guise of determining a point of law, for to do so would be to fundamentally distort the nature and purpose of the Preliminary Objection as a procedural mechanism. The ground asserting that the 2nd Defendant was a mere agent and independent contractor is, with respect, a deeply contested factual averment that cannot be resolved without the taking of evidence, and its introduction at this stage is precisely the kind of factual incursion that the law prohibits at the Preliminary Objection stage. 34.On the grounds directed at the alleged absence of permissible evidence of breach and the alleged prematurity of the suit, I find these to be equally unsustainable as Preliminary Objections. Both grounds invite this Court to assess the sufficiency of the Plaintiff's evidence and to prejudge the merits of the case functions that are exclusively reserved for the trial. In Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & Another [2016] eKLR, the Court of Appeal affirmed that a Court entertaining a Preliminary Objection must proceed on the unqualified assumption that every fact pleaded by the Plaintiff is true, and that any enquiry into whether those facts are proved or provable must await the trial. The 2nd Defendant's submission that the Plaintiff bears the onus of demonstrating breach at this preliminary stage fundamentally misconstrues this principle. 35.Furthermore, the assertion that the suit is premature is contradicted on the face of the Plaint itself, which discloses a formal demand dated 21/03/2025 and an attempted disposal of the suit properties in or around March 2025, both of which demonstrate that the cause of action had crystallised well before the date of filing. In Thabiti Enterprises Limited v Trust Bank Limited [1996] eKLR, the Court of Appeal held that where the facts pleaded on the face of the plaint disclose a subsisting cause of action, a Preliminary Objection on the ground of prematurity cannot be sustained. The 2nd Defendant's reliance on Order 4 Rule 1(1)(f) of the Civil Procedure Rules does not advance its case any further, as the said provision regulates the form and content of pleadings and does not create a jurisdictional bar of the kind that could found a valid Preliminary Objection capable of terminating the suit entirely. 36.Having regard to the totality of the submissions placed before me and the applicable law, I find that the 2nd Defendant's Preliminary Objection is misconceived in its entirety and does not meet the legal threshold of a valid Preliminary Objection. All six grounds raised either require factual inquiry, invite the exercise of judicial discretion, or raise issues that are expressly curable under the Civil Procedure Rules 2010 and therefore incapable in law of defeating the Plaintiff's suit at this interlocutory stage. 37.The constitutional imperative enshrined in Article 159(2)(d) of the Constitution of Kenya, 2010, which commands that justice be administered without undue regard to procedural technicalities, further reinforces this conclusion. Accordingly, the 2nd Defendant's Preliminary Objection dated 4/07/2025 is hereby dismissed with costs to the Plaintiff. 38.The parties are directed to go for Pre-trial Conference on 01/10/2026. 39.Orders Accordingly. DATED, SIGNED AND DELIVERED AT THIKA VIA MICROSOFT TEAMS ON THIS 30TH DAY OF JULY 2026.…………………….MOGENI JJUDGEIn the presence of:Plaintiff – Absent1st Defendant – AbsentMr. Wamuti holding brief for Wanjau for the 2nd DefendantMr. Melita - Court Assistant...………......……….MOGENI JJUDGE