https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5088

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT OF KENYA** **AT HOMA BAY LAW COURTS** **ELCLC CASE NO. E007 OF 2026** KEPHER MAKANYENGO................................................APPLICANT **VERSUS** COUNTY GOVERNMENT OF HOMABAY..............1ST RESPONDENT LAND REGISTRAR HOMABAY............................2ND RESPONDENT COUNTY ATTORNEY..........................................3RD RESPONDENT THE HONOURABLE ATTORNEY GENERAL........................................4TH RESPONDENT **RULING** 1. Before this Court for determination is a Notice of Preliminary Objection raised by the 1st and 3rd Defendants pursuant to Order 51 Rule 14 of the Civil Procedure Rules, 2010. The Preliminary Objection challenges the Applicant's Notice of Motion dated 23rd February 2026 on the following grounds: - 1. That the Applicant's Notice of Motion dated 23rd February 2026 is incompetent, fatally and incurably defective and amounts to an abuse of the process of the Court because: - 2. The application has been instituted contrary to Order 1 Rules 9 and 13 of the Civil Procedure Rules, 2010, there being a misjoinder of parties, as the 3rd Defendant has no direct legal or factual involvement in the subject matter of the dispute. Consequently, the continued inclusion of the 3rd Defendant is frivolous, vexatious and an abuse of the court process. 3. No statutory notice was issued against the Government as allegedly required under Section 13A of the Government Proceedings Act. 4. The application is an abuse of the court process since the law has provided a statutory framework for dealing with public records under Sections 79, 80, 81 and 106B of the Evidence Act. 5. The 1st and 3rd Defendants therefore contend that the substratum upon which the Notice of Motion dated 23rd February 2026 and the entire suit are founded is incompetent, fatally defective and ought to be struck out with costs. 6. The Preliminary Objection was canvassed by way of written submissions. The Applicant filed submissions dated 29th April 2026 opposing the objection, while the 1st and 3rd Defendants relied on their written submissions in support thereof. **ANALYSIS AND DETERMINATION** 1. I have carefully considered the Notice of Preliminary Objection, the rival submissions by counsel and the applicable law. The issue falling for determination is whether the objection as raised qualifies as a proper preliminary objection capable of disposing of the application or the suit. 2. The law governing preliminary objections is now well settled. In the celebrated case of **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696**, the Court stated that a preliminary objection consists of a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct and which, if successful, may dispose of the suit. 3. The Court further cautioned that a preliminary objection cannot be raised where any fact requires to be ascertained or where the Court is called upon to exercise judicial discretion. 4. The Supreme Court in **Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR** reiterated that a preliminary objection must be founded on a pure point of law and should not involve contested facts or the exercise of judicial discretion. 5. The first limb of the objection is that there is a mis joinder of parties because the 3rd Defendant has no legal or factual connection with the dispute. 6. Whether or not the 3rd Defendant has been properly joined to these proceedings is a matter that can only be determined after examining the pleadings and the role attributed to that party in the impugned transactions. 7. Such an inquiry necessarily entails an examination of facts and cannot therefore constitute a pure point of law. 8. In any event, **Order 1 Rule 9 of the Civil Procedure Rules** expressly provides that no suit shall be defeated by reason of the mis joinder or non-joinder of parties, and 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. 9. Consequently, even if there were a mis joinder, that alone would not render the application or the suit incompetent. 10. In Zephir **Holdings Ltd vs Mimosa Plantations Ltd, Jeremiah Maztagaro and Ezekiel Misango Mutisya (2014) eKLR**, where he held that**;** **“A proper party is one who is impleaded in thesuitand qualifiees thethresholds ofa plaintiff or defendant under Order 1 rule 1 and 2 respectively, or as a third party or as an interested party and whose presence is necessary or relevant for the determination of the real matter in dispute or to enable the court electually and completely adjudicate upon and settle all questions involved in the suit. And the court has a wide discretion to even order suo moto fora party to beimpleaded whose presence may be necessary to enablethe court effectually and completely adjudicate upon and settle all questions involved in the suit. Accordingly, a suit cannot be defeated for mis-joinder or non-joinder of parties.** 1. The second ground is that no statutory notice was issued under Section 13A of the Government Proceedings Act. The Court notes that the applicability of Section 13A depends on the nature of the proceedings, the reliefs sought, the parties involved and whether the statutory notice requirement is in fact attracted in the circumstances of the case. 2. Determining those issues requires consideration of the pleadings and surrounding facts. The issue therefore cannot properly be determined as a preliminary objection. . 3. In the case of *[Kenya Bus Service Ltd & Another v. Minister For Transport & 2 Others](https://new.kenyalaw.org/akn/ke/judgment/kehc/2012/2402)* [2012] eKLR where, *inter alia*, the constitutionality of section 13A of the *[Government Proceedings Act](https://new.kenyalaw.org/akn/ke/act/1956/47)* (GPA) was challenged for being in contravention of Article 48 of the *[Constitution](https://new.kenyalaw.org/akn/ke/act/2010/constitution)* which provides as follows - “ 48 . The State shall ensure access to justice for all persons and, if anyfee is required, it shall be reasonable and shall not impede access to justice.” 1. Manjanja J. who heard the matter examined a wide range of international, historical and comparative perspectives of similar statutes of limitation of actions against the Government and other public authorities and came to the following conclus**ion:** **‘’Viewed against the prism of the *[Constitution](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*, it also becomes evident that section 13A of the *[GPA](https://new.kenyalaw.org/akn/ke/act/1956/47)* provides an impediment to access to justice. Where the state is at the front, left and centre of the citizen’s life, the law should not impose hurdles on accountability of the Government through the courts. An analysis of the various reports from Commonwealth which I have cited clearly demonstrate that the requirement for notice particularly where it is strictly enforced as a mandatory requirement diminishes the ability of the citizen to seek relief against the government. It is my finding therefore that section 13A of the *[Government Proceedings Act](https://new.kenyalaw.org/akn/ke/act/1956/47)* as a mandatory requirement violates the provisions of Article 48.”** 1. The court in *[Kenya Bus Service Ltd & Another v. Minister for Transport & 2](https://new.kenyalaw.org/akn/ke/judgment/kehc/2012/2402)* ***[Others](https://new.kenyalaw.org/akn/ke/judgment/kehc/2012/2402)* (*supra*) held, inter alia, that:-** **Section 13A of the *[Government Proceedings Act](https://new.kenyalaw.org/akn/ke/act/1956/47)* as a mandatory requirement for the institution of suit against the government violates the provisions of the Article 48 of the *[Constitution](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*”** 1. The third ground is that the application offends the provisions of Sections 79, 80, 81 and 106B of the Evidence Act concerning public records and electronic evidence. Whether documents relied upon comply with the provisions of the Evidence Act is fundamentally an evidentiary question. It can only be determined after the relevant documents have been produced or relied upon before the Court. Such an issue cannot be determined in limine as a pure point of law. 2. It is therefore evident that each of the grounds raised by the 1st and 3rd Defendants requires the Court to interrogate facts or evaluate evidence. The objection thus falls outside the parameters of a proper preliminary objection as envisaged in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (supra).** 3. The Court is also mindful that striking out pleadings is a draconian remedy that should only be resorted to in the clearest of cases. 4. Where a matter can be determined on its merits after hearing the parties, the Court should lean in favour of sustaining rather than terminating proceedings prematurely. **DISPOSITION** 1. In the result, I find that the Notice of Preliminary Objection lacks merit and does not raise pure points of law capable of disposing of the Applicant's Notice of Motion or the suit. 2. Consequently, the Preliminary Objection is hereby dismissed. 3. The Applicant's Notice of Motion dated **23rd February 2026** shall proceed to hearing on its merits. 4. The costs of the Preliminary Objection shall abide the outcome of the main application. 5. It is so ordered. RULING DATED AND DELIVERED AT HOMA BAY VIA TEAMS’ PLATFORM THIS 29TH DAY OF JULY 2026. In the presence of; * + 1. Moguku for the plaintiff. 2. Odhiambo for the 1st Respondent -present 3. Court Assistant Bosibori. JUSTICE J.W WANYONYI – JUDGE