https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4169

Kandie v National Land Commission (Environment and Land Case E349 of 2025) [2026] KEELC 4169 (KLR) (6 July 2026) (Ruling) Neutral citation: [2026] KEELC 4169 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E349 of 2025 CG Mbogo, J July 6, 2026 Between Kipruto Kandie Plaintiff and National Land Commission Defendant Ruling 1.Before this court for determination is the notice of preliminary objection dated 4th March, 2026 filed by the defendant seeking that the suit be struck out on the following grounds: -1.The plaintiff/applicant has failed to demonstrate sufficient interest in the suit property because the grant no. 46540, the Nairobi City County rates bill and clearance certificate, the ministry of Lands search certificates and the Kenya Gazette notice 6601 in respect of the suit property for which the plaintiff/applicant wholly relies upon to claim ownership of the suit property are all in the sole name of Moloi Enterprises Limited and not the plaintiff/applicant.2.The plaintiff/applicant has failed to provide any evidence to show that the suit property is registered to the late Aaron Kimosop Kandie under whose estate the plaintiff/applicant claims to be a sole beneficiary of the suit property.3.Notwithstanding 2 above, the plaintiff/applicant has failed to provide duly signed written consent from Chepchumba Kandie, Kiptui Kandie and Kigen Kandie as co-administrators of the estate of the late Aaron Kimosop Kandie under the certificate of confirmation of grant dated 4th December, 2017 permitting the plaintiff/applicant to file suit on behalf of the aforesaid estate. 2.The preliminary objection was canvassed through written submissions. The defendant filed written submissions dated 23rd March, 2026. The plaintiff filed his written submissions dated 26th March, 2026. I have considered the preliminary objection and the written submissions filed. The issue for determination is whether the notice of preliminary objection raises a pure point of law. 3.Law, J.A. in Mukisa Biscuits Manufacturing Company Limited -vs- West End Distributors (1969) EA 696 stated as follows:-“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, will dispose of the suit. Examples are an objection to jurisdiction of the court, a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the matter to arbitration...” 4.Also, in the case of John Musakali vs. Speaker County of Bungoma & 4 others (2015) eKLR, it was held that: -“The position in law is that a preliminary objection should arise from the pleadings and on the basis that facts are agreed by both sides. Once raised the preliminary objection should have the potential to disposing of the suit at that point without the need to go for trial. If, however, facts are disputed and remain to be ascertained, that would not be a suitable preliminary objection on a point of law.” 5.Further, Ojwang J (As he then was) in Oraro -vs- Mbaja (2005) KLR 141 where after quoting the statement of Law, JA. in the Mukisa Biscuits case (supra) went on to state that: -“A 'preliminary objection' correctly understood is now well defined as and declared to be a point of law which must not be blurred by factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a preliminary objection, 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. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point....Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence...” 6.From the above cited authorities, it is clear that for a preliminary objection to succeed, the same must consist of a pure point of law, with the facts not disputed by the opposing party. Also, a preliminary objection should possess the ability to dispose of the issue that is before court without going to trial and lastly, the same ought to stem from and not outside of pleadings. 7.In applying the above principles to the instant objection, I am not satisfied that the objection raises a pure point of law. To begin with and by reading the grounds of the preliminary objection, one can easily discern that the defendant analyzed the evidence contained in the plaintiff’s list of documents to challenge the suit. More particularly, and in its written submissions the defendant is inviting the court to comb through the evidence and determine that indeed, the suit is not properly before this court. Once the court looks outside of the pleadings, the preliminary objection becomes automatically defeated as the court will be engaging in a mini trial of sorts. 8.In the circumstances of this case, a preliminary objection is not the best tool to use to challenge this suit. I find that the notice of preliminary objection dated 4th March, 2026 does raise a pure point of law, the same is hereby dismissed with costs to the plaintiff.It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 6TH DAY OF JULY, 2026.HON. MBOGO C.G.JUDGE06/07/2026.In the presence of:Ms. Benson Agunga - Court assistantMr. Kimata for the Defendant/RespondentNo appearance for the Plaintiff/Applicant