https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3532

Mwangi v Ndung’u (Land Case E293 of 2025) [2026] KEELC 3532 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELC 3532 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Land Case E293 of 2025 CG Mbogo, J June 11, 2026 Between Faith Wangari Mwangi Plaintiff and Rose Polly Ndung’U Defendant Ruling 1.Before this court for determination is the notice of preliminary objection dated 2nd December, 2025 filed by the defendant challenging the plaintiff’s suit on the following grounds:-1.That the application and suit is fatally defective and is filed in contravention of Order 1 Rule 3 of the Civil Procedure Rules (sic).2.That in the alleged agreement Rose Polly Ndungu acted only in her capacity as the administrator of the estate of the late Joseph Ndungu Giathi (deceased).3.That the suit offends the provisions of Section 8 of the Advocates (Practice Rules) 1996.4.That the suit offends Section 9 of the Advocates Act.5.That the said suit is incurably defective and otherwise an abuse of the court process.6.That this suit is incompetent, bad in law and that the same should be struck out with costs to the defendant.7.That the suit offends the provisions of Section 134 of the Evidence Act and therefore fatally defective. 2.The preliminary objection was canvassed through written submissions. The defendant filed written submissions dated 7th January, 2026. The plaintiff filed written submissions dated 28th January, 2026. I have considered the preliminary objection and the written submissions filed by both parties. The issue for determination is whether the preliminary objection raises pure points of law and whether the same ought to be upheld. 3.Law, J.A. in Mukisa Biscuits Manufacturing Company Limited v 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 raises 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...” 4.Also, in the case of John Musakali v 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.” 5.Further, Ojwang J (As he then was) in Oraro v 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...” 6.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 and not outside of pleadings. 7.In applying the above principles to the instant objection, I am not satisfied that the objection raises pure points of law. To begin with and by a reading of the written submissions filed by the defendant, it is clear that she is inviting the court to look at the agreement dated 2nd April, 2009 and the addendum dated 1st September, 2014 which ideally would form part of the evidence. In fact, the said agreement and the addendum are entirely relied on in the submissions as the basis for which the preliminary objection ought to be upheld. 8.On whether the suit is fatally defective having been filed in contravention of Order 1 Rule 3 of the Civil Procedure Rules, the plaint dated 11th June, 2025 discloses the nature of the transaction as between the parties under paragraph 4. Besides, Order 1 Rule 9 of the Civil Procedure Rules is clear in case of a misjoinder and states as follows:-“No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.” 9.From the above, I find grounds 2 to 7 cannot be argued through a preliminary objection as the same are factual issues that call for the court’s interrogation of the evidence. In that case, and as I had stated earlier, the grounds in the notice of preliminary objection are not pure points of law. Thus, the notice of preliminary objection dated 2nd December, 2025 lacks merit, and it is hereby dismissed with costs to the plaintiff.It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLYTHIS 11TH DAY OF JUNE, 2026.HON. MBOGO C.G.JUDGE11/06/2026.In the presence of:Mr. Benson Agunga - Court assistantMr. Bosire holding brief for Ms. Nthenya for the ApplicantMr. Gichana holding brief for Mr. Igeria for the Plaintiff/Respondent