https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3519

Ngei Phase1 Residents Association Suing Through Timothy Maina & 2 others v Simwa & 11 others (Environment and Land Miscellaneous Case E052 of 2025) [2026] KEELC 3519 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELC 3519 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Miscellaneous Case E052 of 2025 CG Mbogo, J June 11, 2026 Between Ngei Phase1 Residents Association Suing Through Timothy Maina 1st Applicant Assumpta Wanjiru Maingi 2nd Applicant Josphat Muchai Mathare 3rd Applicant and Zipporah Simwa 1st Respondent Janet Sandagi 2nd Respondent Betty Undisa (Sued as Trustees of Kama Women Group) 3rd Respondent Timothy Berre Manoa 4th Respondent Grace Berre 5th Respondent Joseph Chief Nyonga 6th Respondent Mary Moraa 7th Respondent Nelson Mwanzia Kivuvani 8th Respondent Francis Kibet Arap Serem 9th Respondent Ilula Limited 10th Respondent and National Land Commission 1st Interested Party The Chief Lands Registrar 2nd Interested Party Ruling 1.Before this court for determination is the notices of preliminary objection dated 30th November, 2025 and 22nd January, 2026 respectively. The notice of preliminary objection dated 30th November, 2025 was filed by the 1st, 2nd and 9th respondents challenging the notice of motion dated 12th March, 2025 on the following grounds:-1.The entire miscellaneous application is fatally and incurably defective, incompetent, and bad in law as it has been purportedly instituted by way of a notice of motion, which is not a legally recognized originating process for the commencement of a substantive civil suit.2.The applicants’ notice of motion is an interlocutory application which by law, can only be filed within a properly instituted suit. In the absence of an underlying plaint or other valid originating process, this application is naked and unanchored.3.The suit is in violation of the laws of Kenya which mandates the proper institution of a civil suit as herein below:-i.The mandatory provisions of Section 19 of the Civil Procedure Act and Order 3 Rule (1)(1) of the Civil Procedure Rules stipulate that every suit shall be instituted by way of a plaint or as may be prescribed.ii.The applicants’ failure to comply with this mandatory requirement is a fundamental error that cannot be overlooked.4.The omission/failure to institute the suit correctly is a glaring omission adhering to statutory provisions which goes to the root of the suit’s legality and cannot be excused or cured by invoking Article 159 (2)(d) of the Constitution.5.The honourable court therefore lacks jurisdiction to entertain a suit commenced in a manner contrary to the express provisions of the law, thereby rendering the entire judicial process a nullity. 2.The 9th respondent also filed the notice of preliminary objection dated 22nd January, 2026 in opposition to the notice of motion dated 12th March, 2025 on the following grounds:-1.This honourable court lacks jurisdiction to entertain the applicant’s notice of motion dated 12th March 2025 by virtue of the doctrine of exhaustion, the dispute herein having been properly lodged before and being actively seized by the National Land Commission (NLC).2.The applicant has prematurely invoked the jurisdiction of this honourable court in contravention of Article 67 (2)(e) of the Constitution, Section 14 of the National Land Commission Act, and the settled principle that statutory dispute resolution mechanisms must be exhausted before recourse to court.3.The orders sought by the applicant are calculated to pre-empt, undermine, and usurp the constitutional and statutory mandate of the National Land Commission to investigate historical land injustices and the legality of land titles.4.The application is sub judice, vexatious, and an abuse of the court process, the issues raised therein being substantially similar to those pending determination before the National Land Commission.5.No exceptional circumstances have been demonstrated by the applicant to warrant a departure from the doctrine of exhaustion or to justify this honourable court’s intervention at this preliminary stage.6.The application is incompetent, bad in law and fatally defective and ought to be struck out with costs. 3.Both objections were canvassed through written submissions. The applicants filed their submissions dated 28th May, 2026. By the time of writing this ruling, the respondents had not filed their submissions. Be that as it may, there are two outstanding issues that arise from both objections which are whether the application is incompetent for lack of substantive pleadings and whether the applicants have failed to exhaust the dispute resolution mechanisms available before approaching the court. 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...” 5.Also, 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.” 6.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...” 7.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. 8.The applicants filed the notice of motion dated 12th March, 2025 seeking the following orders:-1.Spent.2.That pending hearing and determination of this application inter partes, this honourable court be pleased to issue a temporary injunction, jointly or severally against the 1st to 10th respondents, restraining them, their agents, assignees, or representatives from developing, subdividing, selling or interfering with land parcels number Nairobi/ Block 60/503, 60/504,60/505,60/515,60/489,60/502 and 60/483 situate in Ngei Lang’ata Constituency in Nairobi City County and registered in the names of the 1st to 10th respondents.3.That pending hearing and determination of the complaint before the 1st interested party, the 2nd interested party is hereby directed to register a caution or an inhibition against any subdividing, selling or interfering with land set aside as public utility by Ngei Phase 1 Residents contained under parcels number Nairobi/ Block 60/503, 60/504, 60/505, 60/515, 60/489, 60/502 and 60/483.4.That upon hearing of this application inter partes, this honourable court be pleased to issue a temporary injunction restraining the 1st to 10th respondents, their agents, assignees or representatives from developing, subdividing, selling or interfering with land parcels nos. Nairobi/ Block 60/503, 60/504, 60/505, 60/515, 60/489, 60/502 and 60/483 registered in the names of the 1st to 10th respondents pending the hearing and determination of the complaint filed by the applicant before the 1st interested party.5.That the honourable court be and is hereby pleased to direct the 1st interested party to expedite its investigations, hearing and determination of the complaint filed by the applicants herein within the next twelve months.6.That costs of this application be provided for. 9.The above notice of motion triggered the instant objections on grounds that the same was not anchored on any suit. In their written submissions, the applicant argued that they do not seek proprietary rights over the suit properties except that there was urgent need for intervention due to the delay by the 1st interested party to conduct investigations on the dealings of the outlined suit properties. They made it clear that they filed the application seeking conservatory orders to protect the suit properties pending the hearing and determination of their complaint before the 1st interested party. 10.Order 3 Rule 1 of the Civil Procedure Rules provides as follows:=“Every suit shall be instituted by presenting a plaint to the court, or in such other manner as may be prescribed.” 11.Section 19 of the Civil Procedure Act provides that:-“Every suit shall be instituted in such manner as may be prescribed by the rules.” 12.In the case of Chacha & another v Orbit Chemicals Industries Limited [Environment and Land Misc. Case E003 of 2023 [2020] KEELC 3278 [KLR] it was held that:-“…It behooves the applicants to file a suit whereby the same is seeking substantive orders against the respondents. Only then can the applicants file an application for temporary injunction pending the determination of the suit. The orders of temporary injunction or even a permanent injunction can only be anchored on some foundation. For clarity, the foundation would be a substantive suit filed by the applicants and in respect of which the same has inter-alia sought for orders of permanent injunction or appropriate declaratory reliefs.”“For coherence, in the absence of a suit, to anchor the application for temporary/permanent injunction, the application for temporary/permanent injunction herein has certainly been made and mounted in vacuum….In this matter the applicants did not anchor their notice of motion in a suit. They do not have a competent suit before the court. The application is not anchored in any pleading to give it validity. Not every procedural blunder can be excused as a ‘mere technicality’. The filing of a suit is a mandatory statutory provision which the court cannot simply wish away.” 13.Also in SM v MNM [2025] KEHC 12052 (KLR) the court stated thus:-“There is ample case law that an injunction cannot issue in a vacuum when there is no suit before the court – see the authorities cited above - Mbugua & another v Mbugua & 4 others, Chacha & another v Orbit Chemicals Industries Limited and Geofrey Ndungu Theuri v Law Society of Kenya [1988] KECA 81 [KLR]. They all point to the fact that an application for injunction filed without a substantive suit is incompetent. The same position was taken in the case of Swanya Limited & 2 others v Homebay Property Limited [2021] eKLR where an application for injunction was filed without a substantive suit and the court stated that:.....in the absence of a substantive suit, the subject application, was mounted in vacuum. Same was therefore legally untenable and incapable of attracting orders of temporary injunction.” 14.There is no gainsaying that any application ought to be premised in a suit instituted through either through a plaint, chamber summons or originating summons. The authorities cited above show that indeed a notice of motion application such as the one dated 12th March, 2025 ought to be pegged on a substantive suit. While acknowledging lack of a suit, the applicants contended that the matter is pending before the 1st interested party. As I understand their arguments, the applicants moved the court seeking urgent intervention. In other words, they are keen to obtain temporary relief, and are not interested in any permanent orders. In my view, I find this a gross abuse of the court process. If there was delay on the part of the 1st interested party, there are avenues which a party can invoke to compel disposition of a matter before the tribunal say, judicial review proceedings. 15.Having said that and seeing to it that the application was filed in the absence of a substantive suit, the court cannot proceed with the hearing and determination of the same for the reason that there is no foundation on which the same is predicated. More importantly, it would also be a waste of court’s time to consider whether the applicants prematurely moved the court with the same application as per the latter preliminary objection filed. 16.Having said the above, I find merit in the notice of preliminary objection dated 30th November, 2025 and it is hereby upheld. The notice of preliminary objection dated 22nd January, 2026 cannot issue for the reason that the court has already pronounced itself on the initial preliminary objection. The notice of motion dated 12th March, 2025 is defective in substance and in form. The same is hereby struck out. Each party to bear its own costs.It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 11TH DAY OF JUNE, 2026.HON. MBOGO C.G.JUDGE11/06/2026.In the presence of:Mr. Benson Agunga - Court assistantMr. Chebon for the 1st, 2nd, 3rd and 9th RespondentsMs. Muthui holding brief for Mr. Munyenze for the 8th RespondentMs. Mwanyika for the 1st Interested PartyMr. Simiyu holding brief for Mr. Wabuge for the Applicant