https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5272

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCLC NO. E363 OF 2024** **ELIZABETH NYAWIRA MBUGUA.......................................1ST PLAINTIFF** **SOPHIA WANJIRU MBUGUA………………...........……………..2ND PLAINTIFF** **JOHNSON KAGUA MBUGUA………………............……………..3RD PLAINTIFF** **IAN WAHOME MBUGUA…………………………............…………4TH PLAINTIFF** **T/A MOWAKA AUTO CENTRE** **VERSUS** **TURI GARDENS LIMITED................................................1ST DEFENDANT** **SHAAZIR PRIME REALTORS LIMITED………...........…….2ND DEFENDANT** **SAMUEL ALLAN OTIENO** **T/A NEXTGEN AUCTIONEERS……….....….............………..3RD DEFENDANT** **RULING** 1. The 2nd and 3rd defendants filed the notice of preliminary objection dated 10th July, 2026 challenging the amended plaint and the application dated 13th October, 2025 on the following grounds:- 2. ***That the plaintiffs have not appeal against the decision of the Honourable Daniel Ole Keiwua (CM) in Nairobi Misc. app. No. E1695 of 2025 Allan Otieno T/a Nextgen Auctioneers and Shaazir Prime Realtors v Mowaka Auto Centre, Mowaka Barber Shop, Moov café as provided under Order 42 Rule 1 of the Civil Procedure Rules.*** 3. The preliminary objection was canvassed through written submissions. The 2nd and 3rd defendants filed their written submissions dated 14th July, 2025. The plaintiffs filed their written submissions dated 22nd April, 2026. I have considered the preliminary objection and the written submissions filed. The issue for determination is *whether the notice of preliminary objection has merit.* 4. 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...”*** 1. 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.”*** 1. 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...”*** 1. 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 pleadings and not outside of that. 2. In applying the above principles to the instant objection, I am not satisfied that the objection raises a pure point of law. The suit before the magistrates’ court being **Nairobi Misc. app. No. E1695 of 2025** has not been pleaded in the plaint to enable the court to decipher the issues. Equally, this issue has not been pleaded in the 2nd defendant’s statement of defence and counter claim dated 26th March, 2025. To ascertain whether the plaintiffs have failed to appeal against this decision, the court will be required to look outside the pleadings and comb through evidence. Once the court is invited to look outside of the pleadings, the preliminary objection becomes automatically defeated as the court will be engaging in a mini trial of sorts. 3. The ground raised in the instant objection cannot succeed simply because it is not a pure point of law. The notice of preliminary objection dated 10th July, 2026 lacks merit, and it is hereby dismissed with costs to the plaintiffs. It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY THIS** **12TH DAY OF AUGUST, 2026.** **HON. MBOGO C.G.** **JUDGE** **12/08/2026.** ***In the presence of:-*** *Mr. Benson Agunga – Court assistant* *Dr. Kamau for the Plaintiffs* *Mr. Tanui for the 1st Defendant* *Mr. Njau holding brief for Mr. Farah for the 2nd and 3rd Defendants*