https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5325

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **ELCA NO E034 OF 2024** **MUHURI KARUGURI...................................................................APPELLANT** **-VERSUS-** **SYLVESTER GACHERU MWANGI.......................................RESPONDENT** **RULING** 1. The Appellant herein filed this Appeal against the judgment of the Hon. В.М Осhоi, Principal Magistrate at the Mukurweini Law Courts, delivered on the 6th Day of February, 2018, in **Mukurweini Civil Suit No. 19 of 2015.** 2. The Respondent herein filed a Notice of Preliminary Objection (PO) dated 7th December 2024, which raises the following points in relation to the appeal: 3. **The Appeal was filed out of time and without leave of the court.** 4. **The Appeal seeks to change the subject matter from a boundary dispute to one of ownership and/or proprietary rights.** 5. **No leave has been granted by any court to appeal against or challenge the decisions in the Mukurweini Land Disputes Tribunal Award No 20 of 2001 and Nairobi Civil Application No 405 of 2007, as per paragraphs 7 and 18 of the said Memorandum of Appeal, which matters are not part of this appeal.** 6. **The entire Memorandum of Appeal is fatally and incurably defective and should be dismissed, with costs.** 7. The Respondent filed written submissions in support of his preliminary objection, stating that the appeal was filed out of time. He further stated that, pursuant to a ruling of the court dated 3rd July 2024 in **Nyeri ELC Civil Appeal No E028 of 2022**, the appellant was directed to file the appeal within 21 days. This followed the court's extension of time to appeal. 8. Instead of filing the appeal within the 21 days as directed by the court, the appellant filed this current appeal on 14/10/2024, exactly 101 days later, on 3/7/2024, without leave of the court for an extension of time. 9. Thus, he argues that, having been granted leave to appeal out of time and having failed to do so, the appellant cannot bring a similar application because it would be res judicata. It is the Respondent’s submission that the memorandum of appeal dated 7/7/2024 and filed on 14/10/24 is a nullity and should be dismissed and/or struck out with costs. 10. Counsel also relied on the authorities of Josephine **Wambui Mwangi v Michael Mukundi Ngugi (2021) КЕНС 2002 (KLR)** and **West Kenya Sugar Co. Ltd v Angulu (Appeal E004 OF 2024) (2024) KEELRC 1698 (KLR) (26 June 2024 (Ruling).** **The Appellant’s response** 1. In response to the Respondent’s Preliminary Objection, the Appellant swore an affidavit on 4 December 2025. He deposed that the Preliminary Objection is based on incorrect assertions, misleading to this Honourable Court, and calculated solely to derail and delay the hearing of the substantive appeal. 2. Dissatisfied with the judgment of the Trial Court, he filed an application for leave to appeal out of time, being **Nyeri ELCA E028 of 2022**, and leave to file out of time was granted on 3rd July 2024. 3. The Appellant deposed that, acting pursuant to the leave granted, his advocates prepared and filed the Memorandum of Appeal. However, through an administrative error, the Memorandum of Appeal was filed in the same file, **Nyeri ELCA E028 of 2022**, on 18th July 2024, within the 21 days directed by the Court. 4. When the matter came up on 14th October 2024, the Appellant deposed that this Honourable Court directed the appeal to be regularised by opening a separate appeal file. The same Memorandum of Appeal, dated 7th July, 2025, was refiled, and the current appeal was registered as **Nyeri ELCA E034 of 2024**. On 10th June 2025, this Honourable Court formally admitted the appeal. 5. The Appellant contends that the 1st Respondent’s Preliminary Objection, dated 4th December 2024, was filed six months before this Court admitted the appeal and is therefore premature, overtaken by events, and devoid of any legal foundation. 6. Further, as advised by his counsel, the issues raised in the Preliminary Objection concern facts relating to timelines, filing sequence, and service, which are evidentiary and contested. They therefore do not constitute a *"pure point of law"* within the meaning of **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696** and ought to be dismissed. 7. Counsel for the Appellant also filed written submissions in opposition to the Preliminary Objection, reiterating that the preliminary objection fails on a point of law. 8. It is submitted that the 1st Respondent's Preliminary Objection dated 5th December 2024 was filed a full six months before this Honourable Court formally admitted the Appellant's Appeal on 10th June 2025, and is a premature, misconceived, and strategically deployed tactic aimed at delaying justice and inflating the cost of litigation. 9. The Appellant contends that, on the face of it, the objection is wholly without merit. The very act of admission by this Honourable Court confirms that the Appeal was properly lodged, procedurally compliant, and ripe for hearing on its merits. 10. Thus, their submission is that all four aspects and/or grounds raised in the 1st Respondent’s Notice of Preliminary Objection are moot, as the trial Court in Nyeri ELCA E028 of 2022 had granted leave to the Appellant to appeal out of time. That any errors in filing were honest mistakes, and that the trial Court's directions to regularise the filing led to the proper registration of the appeal under **Nyeri ELCA E034 OF 202**4, adding that the Court in **Nyeri ELCA E028 of 2022**, which handled the application for leave to appeal out of time, and the Court handling the substantive appeal, **Nyeri ELCA E034 of 2024,** have the same jurisdiction. 11. The Appellant contends that the 1st Respondent's Preliminary Objection fails to satisfy the foundational criterion established in **Mukisa Biscuit** (supra), namely that a Preliminary Objection must raise a pure point of law, argued on the assumption that the opposing party's pleaded facts are true, and that it ought to be dismissed. **Determination** 1. The Respondent’s Preliminary Objection dated 7th December 2024 is what is coming up for determination. He argues that this Appeal was filed out of time and without leave of the court, and that it seeks to change the subject matter from a boundary dispute to one of ownership and/or proprietary rights. He further contends that no leave has been granted by any court to appeal against or challenge the decisions in the **Mukurweini Land Disputes Tribunal Award No 20 of 2001** and **Nairobi Civil Application No 405 of 2007**, as per paragraphs 7 and 18 of the Memorandum of Appeal. 2. According to Black's Law Dictionary, a Preliminary Objection is defined as: ***“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”*** 1. The above legal principle has been firmly established in the now-famous case of **Mukisa Biscuit** (supra). The Court then held that: ***“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary objection. A preliminary Objection is in the nature of what used to be a demurrer it raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought in the exercise of judicial discretion. The improper raising of points by way of Preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. This improper practice should stop”*** 1. The Appellant herein did indeed file an application to file the appeal out of time; however, the application was filed in **ELC Civil Appeal Number E028 of 2024** and not in this file. The Court granted leave to file this Appeal against the Judgement delivered on 6th February 2018 in **Mukurweini Civil Suit No 19 of 2015**, vide ruling dated 3rd July 2024, and the appeal was to be filed within 21 days. 2. The Appellant then filed a Memorandum of Appeal dated 7th July 2024, but states that it was filed in the **ELC Civil Appeal Number E028 of 2024** rather than opening a new file. On 10 October 2024, the Court directed that it should have been filed in a separate file, as it was a miscellaneous matter that had already been decided. The Appellant then opened the present appeal file. 3. Thus, it is evident that although the appeal was initially filed out of time, the Appellant had already obtained leave of the Court to file it. Filing in the original application file rather than opening a new file was a procedural technicality, which this Court must not give undue weight to, as commanded by Article 159 of the Constitution of Kenya; therefore, the first preliminary point fails for this reason. 4. The 2nd and 3rd points of the Preliminary Objection are that the Appeal seeks to change the subject matter, from a boundary dispute to one of ownership and/or proprietary rights, and that no leave has been granted by any court to appeal against or challenge the decisions in the **Mukurweini Land Disputes Tribunal Award No 20 of 2001** and **Nairobi Civil Application No 405 of 2007**, as per paragraphs 7 and 18 of the Memorandum of Appeal, respectively. 5. It is trite that a preliminary objection should be determinable without going into the proof of contested facts, as held by the Supreme Court in **Aviation & Allied Workers Union Kenya v. Kenya Airways Ltd & 3 others, Application No. 50 of 2014 [2015] eKLR**, where the Learned Judges had this to say: ***“Thus, a preliminary objection may only be raised on a pure question of law. To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.’’*** 1. The law requires that a Preliminary Objection be brought only on a point of law, as the High Court (Kasango J.) noted in **Kenya Breweries Limited & another v Keroche Breweries Limited [2020] eKLR**, while quoting Mativo J. in the case of: *“****J.N. & 5 others v Board of Management St G. School Nairobi & another (2017) eKLR thus: A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all facts pleaded by the opposite side are correct. It cannot be raised if any fact is to be ascertained or if what is sought is the exercise of judicial discretion…. The principle is abundantly clear. A “preliminary objection” correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes 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. …..” (Emphasis added) Thus, a preliminary objection may only be raised on a “pure question of law.” To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.”*** 1. To determine the subject matter of the appeal and the issues arising from the Trial Court, the Court must examine the contested facts. In my view, points 2 and 3 are not pure points of law, as required for a preliminary objection. Point 4 is that the entire Memorandum of Appeal is fatally and incurably defective and should be dismissed with costs, which is a general point that does not explain why the Memorandum is defective. 2. Consequently, the Preliminary Objection lacks merit and is hereby dismissed, with costs, for the reasons set out above. **Dated, signed, and delivered virtually at Nyeri on this 5th day of August 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **Mr. Maingi for the Appellant** **Mr. Mathai for the Respondent** **Denis - Court Assistant**