https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6609

Githae v Ndegwa (Suing as the Legal Representative of Diana Wanjiku Ndegwa - Deceased ) (Miscellaneous Application E260 of 2025) [2026] KEHC 6609 (KLR) (Civ) (15 May 2026) (Ruling) Neutral citation: [2026] KEHC 6609 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Miscellaneous Application E260 of 2025 AC Mrima, J May 15, 2026 Between Daniel Njuguna Githae Applicant and James Kariuki Ndegwa (Suing as the Legal Representative of Diana Wanjiku Ndegwa - Deceased ) Respondent Ruling Background 1.On 30th May 2024, the Co-operative Tribunal in Nairobi delivered a judgment in Case No. 478 of 2011, declaring James Kariuki Ndegwa, the Respondent herein, the owner of property known as Mutubiri/Wempa/BK.2.2283. 2.Aggrieved by the said judgment, Daniel Njuguna Githae, the Applicant herein, filed the instant application by way of a Notice of Motion dated 14th October 2025, seeking inter alia, leave to file a Memorandum of Appeal out of time and a stay of execution of the Tribunal’s judgment. 3.The application was vehemently opposed through a Notice of Preliminary Objection dated 24th October 2025, and through the directions of this Court, the objection was first heard by way of written submissions. The Preliminary Objection: 4.The objection challenged the jurisdiction of this Court to entertain the matter; and was couched in the following terms: -1.That the Application is incompetent, misconceived and otherwise an abuse of the due process of this Honourable Court.2.That the implunged Judgment relates to ownership of Plot No.1932 (Title No. Mutubiri/Wempa/BK.2.2283) located at Kabati within Murang’a County, and where both the Applicant and the Respondent reside.3.That this Honourable Court therefore lacks jurisdiction to entertain the instant Application and the intended Appeal as the same offends the provisions of Section 12 of the Civil Procedure Act, Cap. 21 Laws of Kenya, which mandate that suits concerning immovable property be filed within the local limits of the Court’s jurisdiction where the property is situated.4.That the instant Application should therefore be struck out for want of jurisdiction with costs. The Submissions: 5.In his submissions dated 24th October 2025, the Respondent argued that jurisdiction is the foundation of a Court’s authority, and without it, a Court is divested of the power to entertain any matter. It was his case that the subject property, Plot No. 1932 (Title No. Mutubiri/Wempa/BK.2/2283), is situated in Murang’a County, and both parties are residents of that County. Relying on Section 12 of the Civil Procedure Act, the Respondent contended that suits regarding immovable property must be instituted in the Court within whose local limits the property is situated or where the defendant resides. 6.The Respondent relied on the landmark authority of Owners of the Motor Vessel "Lillian S" -vs- Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), wherein the Court of Appeal held that jurisdiction is everything and that a Court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. The Applicant’s case: 7.In opposition to the objection, Daniel Njuguna Githae, filed submissions dated 24th November 2025. It was his position that the High Court possesses the requisite appellate jurisdiction donated by Article 165(3)(e) of the Constitution and Section 81 of the Co-operative Societies Act. He argued that Section 81(1) of the Co-operative Societies Act specifically provides that any party aggrieved by an order of the Tribunal may appeal to the High Court within thirty days, and the Court has the discretion to extend this period. 8.The Applicant further distinguished the subject matter of the intended appeal, stating it regards subscription shares in a Cooperative Society rather than a direct suit for land that would necessitate geographical jurisdiction under the Environment and Land Court. He contended that geographical jurisdiction is only mandatory for an original suit (ELC instance) and should not be used as a procedural technicality to impede substantive justice contrary to Article 159(2)(d) of the Constitution. Analysis: 9.Going forward, this Court will hereinafter first. look at the propriety of the objection and; if it passes that test; then consider the merit thereof as under. (a) The propriety of the preliminary objection in law: 10.A preliminary objection is a tool used to terminate a matter on a pure point of law. It must not raise issues that would require the court to delve into contested facts. In Mukisa Biscuit Manufacturers Ltd -vs- Westend Distributors Ltd, (1969) E.A 696; the Court discussed the nature of preliminary objections thus;... a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection 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....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. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop. 11.In Civil Suit No. 85 of 1992, Oraro -vs- Mbaja [2005] 1 KLR 141, Ojwang J, [as he then was], cited with approval the position in Mukisa Biscuit -vs- West End Distributors (supra) and set the operational bounds of Preliminary Objections as thus;…. 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 processes of evidence. Any 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. 12.In Omondi -vs- National Bank of Kenya Ltd & Others {2001} KLR 579; [2001] 1 EA 177, it was observed that a Court in determining a preliminary objection can look at the pleadings and other relevant documents but must abide by the principle that it must raise pure points of law. It was held;…In determining (Preliminary Objections) the Court is perfectly at liberty to look at the pleadings and other relevant matter in its records and it is not necessary to file affidavit evidence on those matters…What is forbidden is for counsel to take, and the Court to purport to determine, a point of preliminary objection on contested facts or in the exercise of judicial discretion and therefore the contention that the suit is an abuse of the process of the Court for the reason that the defendant’s costs in an earlier suit have not been paid is not a true point of preliminary objection because to stay or not to stay a suit for such reason is not done ex debito justitiae (as of right) but as a matter of judicial discretion. 13.In this matter, the Respondent’s jurisdictional contest rested on the interpretation of Section 12 of the Civil Procedure Act, which provision states as follows: -12.Suit to be instituted where subject matter situate:Subject to the pecuniary or other limitations prescribed by any law, suits—a.for the recovery of immovable property, with or without rent or profits;b.for the partition of immovable property;c.for the foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property;d.for the determination of any other right to or interest in immovable property;e.for compensation for wrong to immovable property;f.for the recovery of movable property actually under distraint or attachment, where the property is situate in Kenya, shall be instituted in the court within the local limits of whose jurisdiction the property is situate:Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the court within the local limits of whose jurisdiction the property is situate, or in the court within the local limits of whose jurisdiction the defendant actually and voluntarily resides or carries on business, or personally works for gain. 14.In appreciating the tenor of the objection and the stipulation of Section 12 of the Civil Procedure Act, it is evident that the objection is grounded on a clear statutory provision and is capable of disposing the entire application at once. It is, therefore, in respect of a pure matter of law and is valid for consideration on merits. (b) The merits of the preliminary objection: 15.The merits of the objection call upon this Court to determine if the statutory framework donates jurisdiction to hear an appeal application at Nairobi. Section 12 of the Civil Procedure Act, generally directs suits concerning immovable property to the local limits where the property is situated. However, the matter before this Court is not a suit in the original sense, but an application for extension of time to file an appeal from a specialized Tribunal. 16.The Co-operative Societies Act, at Section 81(1), specifically designates the High Court as the appellate body for Tribunal decisions as follows: -81.Appeal to High Court(1)Any party to the proceedings before the Tribunal who is aggrieved by any order of the Tribunal may, within thirty days of such order, appeal against such order to the High Court:Provided that the High Court may, where it is satisfied that there is sufficient reason for so doing, extend the said period of thirty days upon such conditions, if any, as it may think fit. 17.The above provision, therefore, does not make any hinderance on a party in accessing the High Court on appeal from a decision of the Tribunal. Further, there is no doubt that the High Court exercises countrywide jurisdiction. In this case, it is notable that the Co-operative Tribunal that rendered the impugned judgment is located in Nairobi. To this Court, the Respondent’s geographical contest should be viewed through the prism of making justice easily accessible to parties and also in a bid to decongest the High Court at Nairobi; and on that score, the High Court sitting in Murang’a would be the most ideal one to deal with the appeal. Having so said, this Court is also aware that in a bid to make justice more accessible to parties and for expedition of matters from the Tribunals to the High Court, the Hon. Chief Justice is in the process of establishing a Division of the High Court at Nairobi [The Tribunal Appeals Division] to specifically handle all such matters. Therefore, this Court finds it prudent that this matter do await the creation of the new Division and, thereafter, be transferred thereto instead of transferring it to the High Court at Murang’a where it will form part of the many pending matters thereby decelerating the intent of Article 159[2][b] of the Constitution. Before the Division is formally created, this Court shall continue dealing with this matter. Disposition: 18.Deriving from the foregoing, the following final orders hereby issue: -(a)The Respondent’s Notice of Preliminary Objection dated 24th October 2025 is hereby disallowed.(b)The Respondent shall file and serve a response to the Applicant’s Notice of Motion dated 14th October 2025 within 14 days of this Order.(c)Once served, the Applicant shall file and serve written submissions alongside any supplementary submissions, if any, within 7 days of [b] above.(d)The Respondent shall file and serve written submissions within 7 days of service.(e)Highlighting of submissions on 10th June 2026.(f)Parties to bear their respective costs of the objection.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 15TH DAY OF MAY, 2026.A.C. MRIMAJUDGERuling virtually delivered in the presence of:Mr. Mwangi Muthoni, Learned Counsel for the Respondent.Mr. Kiarie, Learned Counsel for the Applicant.Amina – Court Assistant.