https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4240

Koter v Abdullahi (Sued as the legal administrator of the Estate of Bulle Abdullahi Gedi - Deceased) (Environment and Land Appeal E007 of 2025) [2026] KEELC 4240 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELC 4240 (KLR) Republic of Kenya In the Environment and Land Court at Garissa Environment and Land Appeal E007 of 2025 RO Omondi, J July 9, 2026 Between Abdinasir Ali Koter Appellant and Rashid Bulle Abdullahi (Sued As The Legal Administrator Of The Estate Of Bulle Abdullahi Gedi - Deceased) Respondent Ruling A. Introduction 1.Before the Court is a Notice of Preliminary Objection dated 25 November 2025 by which the Respondent seeks to have the Appellant’s Notice of Motion dated 20 May 2025 struck out or dismissed in limine. 2.The Notice of Motion against which the Preliminary Objection is directed seeks, among other orders, leave to appeal out of time against the judgment delivered by Hon. Jackson Omwange on 31 January 2024 in Garissa CMELC No. E005 of 2022. 3.The application is founded on the Applicant’s contention that he was the Defendant in the lower court proceedings instituted by the late Bulle Abdullahi Gedi; that he was aggrieved by the judgment delivered on 31 January 2024; and that the Plaintiff thereafter died before an appeal was lodged. 4.The Applicant further states that the deceased’s estate had not taken out letters of administration and that this impeded his intended appeal. He avers that, being a lay person, he experienced difficulty obtaining advice on how to proceed against the estate of a deceased litigant. According to the application, he approached his present advocates on 18 March 2025 and was advised to institute citation proceedings in the Kadhi’s Court. The ruling in those proceedings was delivered on 6 May 2025, appointing the Respondent herein as the legal administrator of the estate, whereupon the present application was brought. B. The Preliminary Objection 5.The Respondent opposes the application through the Notice of Preliminary Objection dated 25 November 2025. The objection is founded on nine grounds. 6.First, it is contended that the appeal is incompetent for failure to deposit security for costs under Order 42 Rule 6(3) of the Civil Procedure Rules, 2010. 7.Secondly, it is contended that the appeal is fatally defective for failure to file and serve a Record of Appeal within the timelines prescribed under Order 42 Rule 8 of the Civil Procedure Rules. 8.Thirdly, the Respondent contends that the application for leave to appeal out of time is misconceived and an abuse of the process of the Court because the delay of over fifteen months is inordinate, unreasonable and inexcusable. It is specifically contended that there were 54 days between the delivery of judgment on 31 January 2024 and the death of the original Plaintiff on 25 March 2024 within which an appeal could have been lodged. 9.The fourth to seventh grounds impugn the proceedings conducted before the Kadhi’s Court. The Respondent alleges that the citation proceedings were fraudulently obtained through material non-disclosure; that the Kadhi’s Court lacked jurisdiction to appoint an administrator; that the Respondent was not properly served with those proceedings; and that he is not a lawful administrator of the deceased’s estate. 10.The eighth ground is that the appeal and the proceedings before the Kadhi’s Court constitute an abuse of the court process, while the ninth is that the intended appeal discloses no arguable point of law or fact and has no reasonable prospect of success. C. Submissions 5.On 24 February 2026, my brother Kibunja J directed that the preliminary objection be canvassed by way of written submissions. 6.Consequently, the Applicant filed submissions dated 30 March 2026, whereas the Respondent did not file any submissions in support of the Preliminary Objection. 7.The Applicant contends that, for a preliminary objection to succeed, it must raise a pure point of law and be argued on the assumption that all facts pleaded by the Applicant are correct. Finally, a preliminary objection cannot be raised where any fact has to ascertained as a basis for exercise of judicial jurisdiction. The applicant relied on the locus classicus Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. 8.The Applicant was emphatic that the preliminary objection as filed does not conform to the requirements of a preliminary objection and is calculated to frustrate the expeditious disposal of the intended appeal. He invited the court to dismiss the same with costs. D. Analysis and Determination 11.I have considered the Preliminary Objection and the Applicant’s submissions. The issue for determination at this stage is whether the grounds raised constitute a competent preliminary objection capable of disposing of the application dated 20 May 2025 in limine. 12.The nature of a preliminary objection was settled in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. A preliminary objection must raise a pure point of law arising from the pleadings which, if upheld, is capable of disposing of the matter. It proceeds on the assumption that the facts pleaded by the opposite party are correct. It cannot properly be raised where facts have to be ascertained, evidence evaluated, or judicial discretion exercised. 13.The Supreme Court of Kenya, in Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 Others, Application No. 50 of 2014 [2015] eKLR, adopted the classic Mukisa Biscuit test with approval and emphasized that the character of an objection is determined by its substance, not by the label assigned to it. 14.This distinction is especially significant here because the Respondent has categorized all nine grounds as “points of law”. This requires us to look beyond the label and analyze each ground individually. i. Whether failure to deposit security for costs renders the appeal incompetent 14.The first ground is that the appeal is incompetent because the Applicant has not deposited security for costs, allegedly contrary to Order 42 Rule 6(3) of the Civil Procedure Rules2010, . 15.Order 42 Rule 6 regulates applications for stay of execution pending appeal. The requirement for security under that provision is one of the conditions relevant to the grant of an order of stay. It is not a condition precedent to the institution of an appeal, nor does failure to furnish security, without more, render an appeal or an application for extension of time incompetent. 16.The application before the Court includes a prayer for stay of execution. Whether security should be ordered, and the nature and amount of such security, are matters to be considered in the determination of that prayer. They do not deprive the Court of jurisdiction to entertain the application for extension of time. 17.The first ground of the Preliminary Objection therefore fails. ii. Whether failure to file and serve a Record of Appeal renders the application incompetent 18.The second ground invokes Order 42 Rule 8 of the Civil Procedure Rules. The Respondent contends that the Applicant failed to file and serve a Record of Appeal within the mandatory timelines prescribed by that provision. 19.Order 42 Rule 8 does not prescribe a period within which a Record of Appeal must be filed or served. It provides that the powers conferred upon the Court by rules 6 and 7 to require security may not be exercised against the Government by the court from whose decree the appeal is preferred. 20.The legal premise upon which the second ground rests is therefore incorrect. 21.More fundamentally, the application before the Court seeks leave to appeal out of time. The question whether the Applicant has shown good and sufficient cause to be permitted to invoke the appellate jurisdiction outside the prescribed period is the very matter awaiting determination. The absence or procedural status of a Record of Appeal cannot, on the basis of Order 42 Rule 8, summarily defeat that application. 22.In any event, the court record contains a Memorandum of Appeal and a Record of Appeal. Any dispute as to when those documents were filed or served would require the Court to ascertain facts from the record. That inquiry falls outside the proper province of a preliminary objection. 23.The second ground therefore also fails. iii. Whether the length and explanation for the delay constitute a preliminary objection 24.The third ground attacks the application on the basis that the delay of more than fifteen months is inordinate and inexcusable. The Respondent further asserts that the Applicant had 54 clear days between delivery of judgment and the death of the original Plaintiff within which to appeal. 25.Section 79G of the Civil Procedure Act expressly empowers the Court to admit an appeal out of time where the appellant satisfies the Court that there was good and sufficient cause for not filing the appeal within time. 26.Whether sufficient cause has been demonstrated is not a pure question of law. It calls for consideration of, among other matters, the length of the delay, the explanation advanced for it, the conduct of the applicant, possible prejudice to the respondent, and the overall interests of justice. 27.The Respondent’s contention that the Applicant had 54 days before the death of the Plaintiff immediately demonstrates the evidential nature of this ground. The Court would have to ascertain when the deceased died, what the Applicant knew and when, what steps were available to him, what steps he in fact took, and whether the explanation given accounts satisfactorily for the relevant period. 28.The Applicant’s pleaded explanation is that the Plaintiff died shortly after judgment; that no legal representative had been appointed; that he encountered difficulty obtaining advice on how to proceed; that citation proceedings were ultimately commenced; and that the present proceedings followed the ruling delivered on 6 May 2025. 29.Whether that explanation amounts to good and sufficient cause is a matter for determination on the merits of the application. To decide it through a preliminary objection would require the Court to do precisely what Mukisa Biscuit prohibits: ascertain facts, weigh competing explanations, and exercise judicial discretion. 30.The third ground is therefore not a competent preliminary objection. iv. The objections to the Kadhi’s Court proceedings 31.Grounds four to seven challenge the validity of the proceedings conducted before the Kadhi’s Court. The Respondent alleges fraud and material non-disclosure; concealment of the deceased’s beneficiaries; want of family consent; conflict of interest on the part of an advocate; want of jurisdiction; improper service through WhatsApp; and want of lawful authority on the part of the Respondent to represent the deceased’s estate. 32.These grounds cannot, by any measure, be determined as pure points of law on the assumption that the Applicant’s pleaded facts are correct. 33.An allegation of fraud must be specifically pleaded and strictly proved. Whether there was a sale of the suit property on 15 March 2024; whether that fact was disclosed; the composition of the deceased’s family; whether family consent was required or obtained; whether counsel acted under a conflict of interest; and the circumstances surrounding service of the citation proceedings are all disputed matters of fact requiring evidence. 34.The allegation that the Respondent was served through WhatsApp despite being a herdsman who was frequently outside network coverage is, on its face, a factual controversy. It cannot be determined without evidence concerning the mode of service, the address or number used, the relevant court orders, and the circumstances in which service was effected. 35.The Court also observes that the ruling of the Kadhi’s Court records that the Respondent had been served and had been granted time to respond but had not done so by the date of the ruling. Whether that finding is correct cannot be resolved by assertion in a preliminary objection. 36.Equally, the objection to the jurisdiction of the Kadhi’s Court cannot be determined in the abstract. The Court would first have to examine the pleadings placed before that court, the precise relief sought, the legal character of the order ultimately made, and the jurisdictional basis upon which the court acted. 37.The Respondent is, in substance, inviting this Court to inquire into and pronounce upon the validity of separate proceedings before another court on the basis of contested factual allegations contained in a preliminary objection. That is not the office of a preliminary objection. 38.Grounds four to seven are therefore incompetent as preliminary points. v. Abuse of process and arguability of the intended appeal 39.The eighth ground alleges that the appeal and the Kadhi’s Court proceedings constitute an abuse of process intended to defeat a valid judgment. 40.Abuse of process may, in an appropriate case, be apparent on the face of the record and capable of determination without evidence. That is not the position here. The allegation advanced by the Respondent depends upon the Court first accepting the contested assertions concerning fraud, non-disclosure, invalid service, want of jurisdiction, and the alleged purpose for which the citation proceedings were instituted. 41.Those matters require proof. The eighth ground, therefore, does not constitute a pure point of law. 42.The final ground is that the intended appeal is frivolous, vexatious, and discloses no arguable point of law or fact. 43.The Memorandum of Appeal contains grounds challenging the findings and conclusions of the trial court. Whether those grounds disclose an arguable appeal calls for at least a prima facie examination of the judgment and the proposed grounds of appeal. Whether the appeal has reasonable prospects of success is also one of the considerations that may arise when the Court exercises its discretion on the application for extension of time. 44.It is not a pure point of law capable of disposing of the application in limine. E. Disposition 45.A preliminary objection is a procedural mechanism intended to dispose of a matter on a clear point of law. It is not a substitute for a replying affidavit, evidence, submissions on the merits, or an appeal against orders made in separate proceedings. 46.In the present case, the first two grounds are founded upon provisions of Order 42, which do not have the legal effect attributed to them by the Respondent. The remaining grounds invite the Court to determine contested facts, assess evidence, interrogate separate proceedings, evaluate the arguability of the intended appeal, and exercise the discretion conferred by section 79G of the Civil Procedure Act. 47.Those matters cannot properly be determined by way of a preliminary objection. 48.I therefore find that the Notice of Preliminary Objection dated 25 November 2025 is without merit. 49.For the avoidance of doubt, nothing in this ruling determines whether the Applicant has established good and sufficient cause for the delay in lodging the intended appeal. In particular, the Court has not determined the sufficiency of the explanation for the period between the delivery of judgment and the death of the original Plaintiff, the period thereafter, or the legal effect of the steps taken in the citation proceedings. Those are matters reserved for determination on the merits of the Notice of Motion dated 20 May 2025. 50.Accordingly, I make the following orders:i.The Respondent’s Notice of Preliminary Objection dated 25 November 2025 is hereby dismissed.ii.The Notice of Motion dated 20 May 2025 shall proceed to determination on its merits.iii.The costs of the Preliminary Objection shall abide the outcome of the Notice of Motion.It is so ordered. DATED, SIGNED AND DELIVERED AT GARISSA THIS 9TH DAY OF JULY 2026.DR. OMONDI R. OWINO, FCIArbELC JUDGEDelivered Virtually On The Teams PlatformIn The Presence Of:Mr. Upendo for Intended Appellant/ApplicantN/A for RespondentMr Dabar Mohamed Court Assistant