https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5063

**REPUBLIC OF KENYA** **IN THE ENVORONMENT AND LAND COURT AT HOMABAY** **ELC CASE NO. E007 OF 2023** GEORGE OSEWE WA BANJA...........................APPLICANT/PLAINTIFF **VERSUS** HON. DAVID ODHIAMBO OLOO & 7 OTHERS.............................RESPONDENTS/DEFENDANTS **RULING** 1. Before this Court for determination is the Preliminary Objection dated 25th November 2025 raised by the 2nd, 3rd, 4th and 5th Defendants. The objection is that the Plaint herein is bad in law, fatally defective and devoid of merit on the ground that the 2nd Defendant lacks the requisite locus standi to be sued in her personal capacity. The objection is expressed to be grounded upon the pleadings, the record of proceedings, the affidavits filed on behalf of the 2nd Defendant and such other grounds as may be adduced at the hearing. 2. The Plaintiff filed what was titled a Replying Affidavit in response to the Preliminary Objection. Before delving into the merits of the objection, this Court must first address the propriety of that response. 3. A preliminary objection is ordinarily argued on points of law and is canvassed through submissions. Save where the Court directs otherwise, there is generally no requirement for parties to file affidavits in response to a pure preliminary objection because such objections are determined on the pleadings and the applicable law. Where factual matters become necessary, the objection ceases to be a true preliminary objection. This position was succinctly stated by the Court in **Oraro v Mbaja [2005] eKLR**, where Ojwang J. (as he then was) held: **"A preliminary objection correctly understood is now well identified 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."** 1. This Court has further noted that the purported Replying Affidavit was neither dated nor commissioned by a Commissioner for Oaths. Although signed by the Plaintiff, it does not meet the mandatory legal requirements governing affidavits. 2. Section 5 of the **Oaths and Statutory Declarations Act, Cap. 15 Laws of Kenya**, provides that every commissioner for oaths before whom any oath or affidavit is taken or made shall state truly in the jurat the place and date when the oath or affidavit is taken or made. Similarly, **Order 19 Rule 7 of the Civil Procedure Rules, 2010** allows the Court to receive an affidavit notwithstanding certain defects in form, but only where such defects are not fundamental. Failure to commission an affidavit is not a mere irregularity but goes to its validity. 3. In **Microsoft Corporation v Mitsumi Computer Garage Ltd & Another [2001] KLR 470**, the High Court held that an affidavit which is not properly commissioned is incurably defective and is liable to be struck out. 4. Consequently, the purported Replying Affidavit is incompetent and is hereby struck out and expunged from the record. The Court shall therefore determine the Preliminary Objection on the basis of the pleadings and the parties' written submissions. 5. The Plaintiff's submissions dated 20th June 2026 oppose the objection on the ground that the objection itself is not a true preliminary objection since it expressly relies upon pleadings, affidavits and the record of proceedings. Counsel argues that once an objection requires reference to evidence or contested facts, it ceases to be a pure point of law. Reliance was placed on **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696** and **Oraro v Mbaja [2005] eKLR**. Counsel further submits that the Plaintiff's claim is founded on trespass and encroachment and whether the 2nd Defendant personally committed the alleged acts is a matter requiring evidence at trial. 6. The Defendants, through submissions dated 14th January 2026, contend that the 2nd Defendant lacks *locus standi* because she is neither the legal representative nor the administrator of the estate of the late Orego. Counsel submits that the dispute concerns adjoining parcels of land, namely KANYAMWA/KOCHIENG/KOMUNGU/KAKAETA/1558 and KANYAMWA/KOCHIENG/KOMUNGU/KAKAETA/39, and that since the latter belongs to a deceased person, only a duly appointed legal representative can be sued. Reliance was placed on **Law Society of Kenya v Commissioner of Lands & Others** and **Alfred Njau & Others v City Council of Nairobi [1982-88] 1 KAR 229**. **Issue for Determination** 1. The sole issue falling for determination is whether the objection raised constitutes a proper preliminary objection capable of disposing of the suit. **Determination** 1. The law on what constitutes a preliminary objection is now settled. In the celebrated case of **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."** Sir Charles Newbold P. further 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."** 1. The same principle was reiterated in **Oraro v Mbaja [2005] eKLR**, where the Court emphasized that a preliminary objection cannot be founded on disputed facts or factual assertions requiring proof. 2. In the present case, the objection itself expressly states that it is grounded upon ***"the various pleadings herein, the record of proceedings and the affidavits filed on behalf of the 2nd Defendant."*** By its own wording, therefore, the objection invites the Court to consider evidentiary material beyond the pleadings. 3. More meaningfully, the question whether the 2nd Defendant can properly be sued in her personal capacity cannot be answered merely by looking at the title of the pleadings. The Plaintiff's suit alleges trespass and encroachment against the Defendants. The Court must determine whether the alleged acts were committed by the 2nd Defendant personally, whether she acted on behalf of the estate, whether she occupied or interfered with the suit land in her own right or otherwise, and whether the relief sought is directed against personal acts or against the estate of a deceased person. These are factual questions requiring evidence. 4. Equally, the Defendants' contention that the dispute concerns boundaries between the Plaintiff's land and land belonging to a deceased person similarly requires factual inquiry. The Court cannot, at this interlocutory stage, determine the capacity in which the 2nd Defendant acted without receiving evidence. 5. The Court also notes that reference has been made to previous orders directing the County Surveyor to determine the common boundary between the parcels. Such matters underscore that factual issues remain unresolved and are incapable of determination through a preliminary objection. 6. While it is indeed settled that only a personal representative holding a grant of representation can generally sue or be sued on behalf of a deceased person's estate, as was stated by the Court of Appeal in **Trouistik Union International & Another v Jane Mbeyu & Another [1993] eKLR**, that principle is not determinative of the present objection because the Plaintiff alleges wrongful acts committed by the 2nd Defendant personally. Whether those allegations are ultimately proved is a matter reserved for trial. 7. The Court therefore finds that the objection does not raise a pure point of law capable of disposing of the suit without investigation of contested facts. It falls outside the parameters laid down in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696**. 8. This Court is alive to the principle that preliminary objections are intended to save judicial time where a pure question of law is capable of disposing of a matter. They should not be converted into mini-trials requiring the Court to evaluate evidence or determine contested facts. To do so would defeat the very purpose for which the doctrine exists. 9. In the premises, I find that the Preliminary Objection dated 25th November 2025 lacks merit and is improperly taken. **Disposition** 1. Accordingly, the Preliminary Objection dated 25th November 2025 is hereby dismissed with costs. 2. The suit shall proceed to hearing on its merits. 3. It is so ordered. **Ruling dated and delivered at Homa Bay this 23rd day of July 2026 via teams’ platform.** **In the presence of;** 1. Wawira for Macharia for the plaintiff- Present. 2. Nyakwamba for the Defendant – Present 3. Odongo for Akello for the 1st and 7th Defendant. **JUSTICE J.W WANYONYI – JUDGE** **23/07/2026**