https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4693

Mwangi & 4 others v Kanumbi & 4 others (Land Originating Summons E025 of 2025) [2026] KEELC 4693 (KLR) (23 July 2026) (Ruling) Neutral citation: [2026] KEELC 4693 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Land Originating Summons E025 of 2025 JN Kuyioni, J July 23, 2026 Between Benson Mwangi 1st Plaintiff John Wanderi 2nd Plaintiff Duncan Ngunjiri 3rd Plaintiff Stephen Muriithi 4th Plaintiff Reuben Macharia 5th Plaintiff and Francis Maina Kanumbi 1st Defendant Ngugi Mwangi 2nd Defendant Julius Githinji 3rd Defendant and Land Registrar Machakos 1st Interested Party Mwanzo Self Help Group 2nd Interested Party Ruling Introduction 1.Before the Court is the Notice of Preliminary Objection dated 11th June 2026 by the 1st, 2nd and 3rd Defendants together with the 2nd Interested Party. The Preliminary Objection challenges the competence of the Plaintiffs' Originating Summons dated 17th September 2025, contending that the dispute is unsuitable for determination under the procedure prescribed by Order 37 of the Civil Procedure Rules, 2010. 2.Pursuant to the directions of the Court, the Preliminary Objection was canvassed by way of written submissions. The Defendants and the 2nd Interested Party filed their submissions together with a List of Authorities on 17th June 2026. The Plaintiffs filed their submissions on 21st July 2026, one day before the date scheduled for the delivery of this ruling and outside the timelines directed by the Court. 3.The Defendants contend that the Originating Summons is procedurally incompetent because it raises contested issues concerning fraud, beneficial ownership, allocation records, subdivisions and competing proprietary interests, all of which require oral evidence and are therefore unsuitable for determination by way of Originating Summons. They rely principally on Kibutiri v Kibutiri [1983] KLR 62 and Kivae Residents Farmers Association v Chief Land Registrar & National Land Commission [2023] KEELC 20194 (KLR). 4.The Defendants further contend that the Plaintiffs failed to disclose previous litigation concerning the suit property, including Nairobi CMCC No. 1910 of 2014 (now MCELC/E121/2026), Nairobi ELC No. 1134 of 2015 and Machakos ELC No. 166 of 2017. They maintain that the proceedings are therefore an abuse of the process of the Court and urge the Court to strike out both the Originating Summons and the Notice of Motion dated 17th September 2025. 5.The Plaintiffs oppose the Preliminary Objection. They contend that, save for the challenge to the procedural mode by which the suit was commenced, the objection invites the Court to determine disputed questions of fact, contrary to the principles governing preliminary objections as settled in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. They further contend that the suit concerns the administration of a trust and the rights of beneficiaries thereunder, matters which Order 37 Rule 1 expressly permits to be commenced by Originating Summons. Issue for Determination 6.Having considered the Notice of Preliminary Objection, the written submissions and the authorities relied upon, the issue falling for determination is whether the Notice of Preliminary Objection dated 11th June 2026 raises pure points of law. 7.The law governing preliminary objections is settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law JA stated:“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, may dispose of the suit." 8.In the same decision, Newbold P observed:“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 is the exercise of judicial discretion." 9.The Supreme Court in Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 Others [2015] eKLR affirmed this principle, stating:“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." 10.From the foregoing authorities, it is clear that a preliminary objection must raise a pure point of law arising from the pleadings or by necessary implication therefrom. It must be capable of disposing of the matter without requiring the Court to ascertain disputed facts, evaluate evidence or exercise judicial discretion. 11.With the foregoing principles in mind, I have carefully considered each of the ten grounds set out in the Notice of Preliminary Objection. With the exception of the contention that the suit ought to have been commenced by Plaint rather than by Originating Summons, every other ground invites the Court to determine contested questions of fact. They require the Court to pronounce itself on allegations of fraud, competing beneficial interests, the authenticity of allocation records, alleged material non-disclosure, previous litigation and abuse of the process of the Court. Those matters are contested by the Plaintiffs. 12.Further, the grounds set out in the Notice of Preliminary Objection cannot be determined on the assumption that the facts pleaded by the Plaintiffs are correct, as required by Mukisa Biscuit. Their determination would require the Court to examine documentary evidence and where necessary, receive oral evidence. They therefore fall outside the province of a proper preliminary objection. 13.The Defendants further contend that the suit ought to have been commenced by plaint instead of an Originating Summons. Unlike the preceding grounds, that argument raises a question of procedure and therefore requires separate consideration. 14.The Defendants' argument rests on the premise that the consequence of commencing proceedings by Originating Summons, where the matter is unsuitable for that procedure, is that the suit must be struck out. That suggestion cannot be reconciled with Order 37 Rule 19 of the Civil Procedure Rules, which expressly empowers the Court, where it considers that proceedings commenced by Originating Summons ought to continue by Plaint, to so direct. The Rule provides:“Where, on an originating summons under this Order, it appears to the court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause had been begun by filing a plaint, it may order the proceedings to continue as if the cause had been so begun and may give such directions as it thinks fit for the mode of procedure thereafter, and for the hearing of the cause." 15.The effect of Order 37 Rule 19 is that commencement of proceedings by Originating Summons does not render the proceedings incompetent. Where the Court is satisfied that the dispute ought to proceed by Plaint, the Rules expressly empowers the Court to direct that they continue as though commenced by Plaint. Consequently, even if the Defendants were correct in contending that the suit ought to have been commenced by Plaint, that conclusion would not terminate the proceedings. It would merely require the Court to determine whether the discretion conferred by Order 37 Rule 19 should be exercised. For that reason, the objection is incapable of disposing of the suit and therefore does not satisfy the test stated in Mukisa Biscuit. 16.I find support for that interpretation in Joseph v Kisau [2024] KEELC 514 (KLR) and Aun Jiwa & another v Yusuf Jiwa & another [2020] KEHC 4079 (KLR). In both decisions, the courts concluded that the disputes were unsuitable for determination by way of Originating Summons. Rather than striking out the proceedings, they invoked Order 37 Rule 19 and directed that the matters proceed as though commenced by Plaint. Those decisions demonstrate that the Rules contemplate the continuation of such proceedings, not their termination. 17.Accordingly, the Notice of Preliminary Objection does not raise a pure point of law capable of disposing of the suit. It therefore falls outside the principles stated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd and cannot be sustained. 18.Before setting out the orders of the Court, I consider it necessary to address the Plaintiffs' written submissions. By directions of the Court, the parties were required to file and exchange their written submissions within specified timelines. The Defendants complied with those directions. The Plaintiffs, however, filed their submissions on 21st July 2026, one day before the scheduled delivery of this ruling and without leave of the Court. 19.Compliance with the directions of the Court is not a matter left to the convenience of parties. Court directions are issued to facilitate the orderly, fair and efficient administration of justice and are binding upon all parties unless varied by the Court. A party who is unable to comply with such directions is expected to seek the Court's indulgence before the prescribed timelines lapse. 20.The Supreme Court underscored the importance of obedience to court directions in Okiya Omtatah Okoiti & 3 Others v The Cabinet Secretary National Treasury & Planning & 10 Others (SC Application No. E029 of 2023) observing that compliance with court orders lies at the heart of the rule of law and that parties who disregard court’s directions cannot expect the Court to overlook such default as a matter of course. 21.Nevertheless, I have considered the Plaintiffs' submissions. They substantially reiterate the matters already disclosed in the pleadings and affidavits and raise no issue that had not otherwise fallen for determination. I have done so to ensure that the Preliminary Objection is determined upon consideration of all the arguments placed before the Court. That indulgence should not, however, be understood as diminishing the obligation of parties to comply with the directions of the Court. 22.Consequently, I make the following orders:a.The Notice of Preliminary Objection dated 11th June 2026 is hereby dismissed.b.The costs of the Preliminary Objection shall abide the outcome of the suit.c.The suit shall proceed for hearing on its merits.It is so ordered. DELIVERED AND DATED AT MACHAKOS THIS 23RD DAY OF JULY, 2026.HON. J. N. KUYIONIJUDGE23.07.2026Ruling delivered virtually through Microsoft Teams Video Conferencing PlatformIn the presence of;Josephine Court Assistant.Mr. Okari for the Plaintiff.Ms. Waweru for Defendants and 2nd Interested Party.