https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3010

Matugi v Mutugi & another (Environment and Land Appeal 15B of 2023) [2026] KEELC 3010 (KLR) (20 May 2026) (Judgment) Neutral citation: [2026] KEELC 3010 (KLR) Republic of Kenya In the Environment and Land Court at Kerugoya Environment and Land Appeal 15B of 2023 SM Kibunja, J May 20, 2026 [FORMERLY EMBU HCCA No. 15 of 2008] Between Labanson Maina Matugi Appellant and Francis Mwangi Mutugi 1st Respondent Teresia Wanjiru Mburi 2nd Respondent (Being an appeal against the ruling of Hon P.T Nditika, SRM, delivered on 14th March 2007 in Kerugoya SRMCC No. 316 of 2006) Judgment 1.This appeal arises from the ruling of Hon. P.T. Nditika, SRM, delivered on 14th March 2007 in Kerugoya SRMCC No. 316 of 2006.In the impugned ruling, the learned trial magistrate found that there existed previous court orders which the appellant had failed to comply with, and that unless and until the said orders were obeyed, the appellant had no right of audience before the court. The ruling effectively shut out the appellant from prosecuting his application dated 28th November 2006.Being dissatisfied with the said ruling and order, the appellant lodged the present appeal vide a memorandum of appeal dated 20th February 2008 setting forth the following seven (7) grounds of appeal:1.That the learned magistrate erred in law and fact in holding that the allegation by the 1st respondent’s counsel to the effect that the appellant was in occupation of the suit property amounted to a point of law and hence qualified to be argued through a preliminary objection.2.That the learned magistrate misdirected himself by finding that the appellant was disobeying the earlier court order, while no evidence was tendered to that effect.3.That the learned magistrate erred in law and fact by allowing a preliminary objection to be raised on facts as opposed to points of law.4.That the learned magistrate misdirected himself by denying the appellant audience for no good reason.5.That the learned magistrate erred in law and fact by failing to give reasons for his ruling.6.That the learned magistrate erred in law and fact by ruling that the mere fact that the appellant’s counsel was not representing the co-defendant made the entire application frivolous.7.That the learned magistrate erred in law by delivering the ruling in the absence of the parties and their counsel.The appellant sought for the appeal to be allowed; the order of the lower court dated 14th March 2007 be set aside and his application dated 28th November 2006 be heard on merit before a different court; and costs be awarded to him. 2.The impugned ruling arose from the appellant’s Notice of Motion dated 28th November 2006, in which the appellant sought for the following orders:1.Spent.2.That this Honourable Court be pleased to order stay of the trial and all proceedings in the suit pending the hearing and determination of the application inter partes.3.That this Honourable Court be pleased to dismiss the suit herein with costs.4.That the costs of the application and the dismissed suit be borne by the plaintiff/respondent.The application was premised on the grounds set out on its face and was supported by the affidavit of the appellant, Labanson Maina Mutugi. In the said affidavit, the appellant deponed that the 1st respondent had instituted the suit against him in the year 2005 and had since obtained injunctive orders restraining him from dealing with Land Parcel No. Kiine/Nyangio/238 as well as orders for his committal to civil jail. He further averred that the respondent instituted the suit despite being fully aware of the existence of an earlier suit between the parties, namely Kerugoya Civil Case No. 59 of 1986, which involved the same subject matter being the suit property. 3.The appellant further deponed that before he was joined to the proceedings, the plaintiff in the earlier matter was his late mother, Monica Wambui Mutugi, under whom he claimed interest in the suit property.According to the appellant, the respondent and his advocate had throughout the proceedings failed to disclose the existence of the earlier pending matter. He further averred that in Nairobi Succession Cause No. 743 of 1990, the High Court had directed that the decision of Justice Githinji in HCCC No. 407 of 1993 be complied with before any further action could be undertaken in respect of the disputed land. 4.It was further the appellant’s case that the High Court had expressly directed that no determination could be made concerning Land Parcel No. Kiine/Nyangio/238 until the hearing and determination of Kerugoya Civil Case No. 59 of 1986.He deponed that the said matter was still pending and had been fixed for hearing on 17th January 2007. Consequently, he contended that any orders issued in the present suit could not properly stand. He further averred that unless the proceedings were stayed, he stood the risk of being committed to civil jail pursuant to the orders already issued by the court, thereby occasioning him grave injustice, particularly because he had allegedly not been accorded an opportunity to be heard. 5.The record and specifically the impugned ruling delivered on 14th March 2007 show that Counsel for the 1st Respondent raised a preliminary objection, that appears to have been premised on the contention that the appellant had disobeyed earlier court orders and therefore had no right of audience before the court until he first complied with the said orders. Counsel also appears to have raised the issue that one of the defendants was absent and that Mr. Mugambi was only acting for one defendant. 6.The learned trial magistrate proceeded to determine the objection and ultimately held that unless the earlier court orders were obeyed, the appellant could not be heard by the court. 7.However, upon carefully perusing the lower court record, this court has not come across any formal Notice of Preliminary Objection filed by the respondents. The record does not contain a pleading setting out the specific grounds upon which the objection was founded. What emerges instead is only the reference to the objection as captured in the impugned ruling.Consequently, the precise scope and formulation of the objection is not readily ascertainable from the record of the subordinate court proceedings. 8.The appeal was initially filed before the High Court, Embu, as HCCA No. 15 of 2008, before being transferred to the Environment and Land Court on 19th January 2023 and given reference 15B of 2023.The court issued directions on filing and exchanging submissions on 23rd October 2024, 26th February 2025, 15th May 2025, and 21st July 2025.The learned counsel for the appellant filed their submissions dated the 18th July 2025, but by the time of preparing this judgement today the 13th May 2026, no submissions by the respondent was traced on the manual court record or the CTS. 9.This appeal raises the following issues for the court’s determinations:a.Whether the objection raised satisfied the threshold of a preliminary objection within the meaning of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd; andb.Whether in light of existing contempt proceedings and subsisting orders, the court was justified in declining to hear the appellant’s application.c.Who pays the costs? 10.The court has after considering the grounds on the memorandum of appeal, the record of appeal, submissions by the appellant’s counsel, superior court decisions referred to thereon, come to the following findings:a.This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and must make due allowance for that fact. This principle was settled in Selle & Another versus Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the Court of Appeal held that:“An appeal to this Court is by way of retrial… this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses…”From the grounds of appeal and the record as presented, the central issue for determination is whether the learned trial magistrate erred in law and in fact in upholding a preliminary objection founded on alleged disobedience of court orders, and consequently denying the appellant audience before the court. Flowing from this main issue are two ancillary but intertwined questions of firstly; the nature of the objection and the Mukisa Biscuit threshold; secondly the right of audience vis-à-vis subsisting contempt orders.b.The nature of the objection and the Mukisa Biscuit threshold:The appellant’s principal complaint is that the learned trial magistrate entertained and upheld a preliminary objection grounded on alleged disobedience of court orders, thereby shutting him out of the proceedings.The governing principle is well settled in Mukisa Biscuit Manufacturing Co. Ltd versus West End Distributors Ltd [1969] E.A. 696, where it was held that a preliminary objection must raise a pure point of law which is capable, if upheld, of disposing of the matter in limine. It must not be founded on disputed facts or require the court to ascertain factual issues through evidence.c.In the present matter, the objection as reflected in the ruling was premised on the assertion that the appellant had disobeyed earlier court orders and therefore had no right of audience. At first glance, such a contention appears to straddle both fact and law. Ordinarily, whether a party is in disobedience of court orders is a factual question requiring proof. On that basis alone, the objection would not qualify as a pure point of law.d.However, the factual matrix in this appeal introduces an important distinction. The record discloses that prior to the impugned ruling:i.There existed an injunctive order issued on 26th October 2005 restraining the appellant from interfering with Land Parcel No. Kiine/Nyangio/238; andii.There was a subsequent ruling delivered on 21st June 2006 in contempt proceedings, which found the appellant in disobedience and granted coercive orders, including committal and ancillary enforcement sanctions.Crucially, those orders remained unchallenged, unappealed, and subsisting at the time of the application giving rise to the present ruling.e.In that context, the objection did not require the court to re-examine whether contempt had occurred. That factual determination had already been made by a competent court in the concluded proceedings. What was left was the legal consequence flowing from that determination, namely, whether a party adjudged to be in contempt and still in breach of subsisting orders is entitled to be heard before purging the contempt. To that extent, the objection assumed a predominantly legal character anchored on an undisputed procedural history rather than a fresh factual inquiry.f.Right of audience vis-à-vis subsisting contempt orders:The second and more substantive question is whether the court was justified in denying the appellant audience. It is not in dispute that the appellant was subject to:i.Subsisting injunctive orders restraining interference with the suit property; andii.A subsequent contempt ruling which had not been set aside or stayed.The jurisprudential position is that courts retain inherent authority to protect their process from abuse and to ensure compliance with their orders. A party that is in deliberate disobedience of court orders may, in appropriate circumstances, be denied audience until compliance.g.However, this principle is not absolute. It must be applied cautiously to avoid undermining the constitutional imperative of access to justice and the right to be heard. In the present case, the appellant’s complaint that he was denied audience must be viewed against the background of an existing contempt finding. Unlike cases where disobedience is merely alleged, here there was a prior judicial determination on record. In those circumstances, the learned trial magistrate cannot be faulted for taking the view that the appellant could not continue to benefit from the court’s process while still in breach of its orders. The denial of audience therefore, was not founded on mere allegation, but on subsisting court finding and sanctions arising from concluded proceedings.h.In the final analysis therefore, the objection, strictly viewed through the Mukisa Biscuit case [supra] lens, would ordinarily raise concerns of mixed fact and law. However, the existence of unchallenged contempt proceedings and subsisting enforcement orders significantly transformed the objection into one grounded on an established procedural fact with clear legal consequences. In those circumstances, the learned magistrate cannot be said to have erred in principle in treating the appellant as lacking audience until he complied with court orders. The appeal is therefore without merit.i.Under Section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya, costs follow the event unless where ordered otherwise by the court on good grounds. I have not seen any good reasons to depart from that position and the respondents shall have costs. 11.In view of the foregoing conclusions on the appeal, the court finds and orders as follows:a.That the appeal has no merit and is dismissed.b.That the learned trial magistrate’s ruling of 14th March 2007 in Kerugoya SRMCC No. 316 of 2006 is affirmed.c.The appellant to pay the respondents’ costs.Orders accordingly. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 20TH DAY OF MAY 2026.S. M. KIBUNJAELC JUDGEIn the presence of:Appellant – No appearanceRespondents – Mr. Masore Nyangau for 1st RespondentCharles/Kinyua - Court Assistant.S. M. KIBUNJAELC JUDGE