https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5273

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KWALE** **ELC EPСC E004 OF 2024** **PALM DREAM HOMES LIMITED……………...…..1ST PLAINTIFF** **BAMBUCH & SAKO LIMITED……………………..2ND PLAINTIFF** **KUSINI BUILDERS LIMITED………………..……3RD PLAINTIFF** * **VERSUS -** **ANNE RUGURU NYOKABI………………………..1ST DEFENDANT** **ESTHER NYOKABI WANDIRITHI…..…………….2ND DEFENDANT** **COUNTY GOVERNMENT OF KWALE………….…3RD DEFENDANT** **RULING** 1. **Introduction** 2. Before the Honourable Court is a Notice of Preliminary Objection dated 13th October, 2025 raised by the 1st and 2nd Defendants. The objection was raised against the filed Plaint dated 5th September, 2024 instituting this suit which sought for an injunction against the Defendants over use of the suit properties Kwale/Galu Kinondo/2394 and Kwale/Galu Kinondo/2395. 3. According to the Defendants/Applicants herein stated that the suit never disclosed any reasonable cause of action against the 1st and 2nd Defendants and hence lacked any legal foundation and should therefore be dismissed with costs. 4. The Preliminary Objection was opposed through filing of Grounds of Opposition dated 13th April, 2026, the court will expound on its contents later in the ruling. 5. **The Preliminary Objection** 6. The 1st and 2nd Defendants raised a Preliminary Objection on a point of law for the suit herein to be struck out on the grounds that: **-** 7. The Plaint discloses no reasonable cause of action against the 1st and 2nd Defendants, whether in Contract, Tort, or statute. 8. The suit as filed was misconceived, frivolous and an abuse of the court process. 9. This court could not proceed with a suit founded on mere allegations or sentiments devoid of any legal foundation and must consequently dismiss both the suit and the Application with cost to the 1st Defendant/Applicant. 10. **The responses by the Plaintiff** 11. The Plaintiffs/Respondents hereby opposed the Defendants' Preliminary Objection dated 13th October, 2025 by filing grounds of opposition 13th April,2026 premised on the following grounds that:- a). The purported Preliminary Objection failed to raise a pure point of law as envisaged under the principles in the case of:- “***Mukisa Biscuit Manufacturing Co. Limited – Versus - West End Distributors (1969) EA 696”.*** Instead, it engaged issues of fact relating to ownership, the alleged existence of a gated community, and the use of the Properties. b). The Preliminary Objection required examination of factual matters including:- * 1. Whether the Properties was indeed part of a gated community known as **"Asili Yetu"**; 2. Whether the Plaintiffs' properties adjoined or affect the Defendants' Properties; 3. The scope and legality of the permitted obtained from the County Government and any Environmental Impact Assessments. c). These matters could not be determined at the preliminary stage and therefore render the Preliminary Objection unsuitable for determination without a full hearing. d). The Plaint clearly disclosed valid claims for relief, including: 1. Alleged encroachment by the Defendants on the Plaintiffs' Properties; 2. Construction of a perimeter wall and rearing of livestock in a manner that affects the Plaintiffs' rights. e). Determination of these issues required evidence and could not be resolved via a Preliminary Objection. **f).** The Defendants asserted rights to freely use their land and rely on the provision of Sections 24 and 25 of the Land Registration Act, No. 3 of 2012. While ownership rights was acknowledged, the Plaintiffs contend that the use of the land must still respect the rights of neighbouring proprietors and any applicable zoning and community regulations. Ownership never automatically override disputes concerning encroachment or use affecting adjoining properties. g). The Defendants alleged that the Properties were not subject to any community regulations and invoke the provision of Article 36 of the Constitution on freedom of association. However, the Preliminary Objection sought to prematurely dispose of the question of whether the Properties form part of a community association, which was a matter requiring factual determination. h). The Defendants' reliance on NEMA permits and Environmental Impact Assessments never preclude this Honourable Court from determining the Plaintiffs' claims of nuisance, encroachment, and illegal construction. Permits issued by government agencies did not extinguish private rights or the Court's supervisory jurisdiction. i). The Preliminary Objection was intended to frustrate the expeditious hearing of this matter and constitutes an abuse of the Court process. The Plaintiffs' claimed was genuine, triable, and ought to be determined on their merits. j). In the interest of justice, the Preliminary Objection should be dismissed with costs, allowing the matter to proceed to full hearing for proper adjudication. 1. **Submissions** 2. On 21st January, 2026, when this matter came up for directions, the parties were guided by Honorable Court to have the said Preliminary objection canvassed by way of written submissions. Pursuant to that, both parties herein complied with the said directive and the court would proceed to give a summary of it here below and render its verdict thereafter. 3. **The Written Submissions by the 1st and 2nd Defendants/Applicants** 4. The Law firm of Messrs. Kasmani & Achieng Advocates LLP filed submissions on behalf of the 1st and 2nd Defendants/Applicants herein dated 3rd February, 2026. M/s. Buyengo Advocate commenced the submissions by providing brief facts of the case. The Plaintiff sought for injunction against the 1st and 2nd Defendant herein as stated from the filed Plaint. The Counsel averred that the suit properties were owned by the 1st and the 2nd Defendants herein. 5. The Learned Counsel submitted that the preliminary objection was founded on the provisions of the Law of Contracts, the Land Registration Act, No. 3 of 2012 and the Constitution of Kenya 2010. It was also anchored in the Common Law principles attaching to proprietary rights over moveable property in Kenya. 6. That from the provisions of the Land Registration Act, a registered proprietor of land was vested with all rights and privileges relating to ownership of land. That the 1st and 2nd Defendants purchased the suit properties from the 1st Plaintiff as per the sale agreements dated 5th December, 2019 and transfer was effected. 7. The Learned Counsel averred that constructing walls and pulling down any structures on the suit properties was within the rights and privileges of ownership. That the admission that there had been a wall put around the suit properties by the “Asili Yetu” community was an admission to encroachment of the suit property. 8. The use of the suit properties for agricultural purposes was within the confines of the law as confirmed by the letter dated 29th July, 2024 from the County Government of Kwale. Further, the Applicants submitted that nothing in the land sale agreement obligates the Applicants to be members of the “Asili Yetu Community” as the same was against their rights and fundamental freedoms of association. The court was urged to allow the preliminary objection and to dismiss the suit by the Plaintiff for being a non-starter. 1. **The Written Submissions by the Plaintiffs/Respondents** 2. The Law firm of Messrs. Walubengo, Waningilo & Co Advocates filed submissions on behalf of the Plaintiffs/Respondents dated 17th April, 2026. Mr. Walubengo Advocate identified eight (8) issues for determination as follows:- 3. Whether the legal standard for Preliminary Objections had been met? 4. Whether the Defendants' objection raised factual issues? 5. Whether the Plaint disclosed a reasonable cause of action. 6. Whether ownership rights did not entitle unlawful interference. 7. Whether the Defendants could rely on the principles of freedom of association and/or contractual obligations to justify their actions, and if so. 8. Whether such reliance could lawfully override the Plaintiff's proprietary rights and applicable statutory and environmental obligations. 9. Whether environmental and land court had jurisdiction to adjudicate Whether environmental considerations could not be ignored. 10. Whether the Preliminary Objection constituted abuse of process. 11. On the first issue for determination. The Learned Counsel averred that the Preliminary Objection never met the required threshold of what entailed a Preliminary Objection legally as it required factual analysis of certain including the alleged non-existence of a gated community, the impact of livestock rearing and wall construction on adjacent properties, and whether the Plaintiffs titles adjoin or was affected by the Defendants' activities. 12. To determine whether the Plaintiffs' Properties were affected by the alleged activities of the Defendants, evidence would be required, including plans, physical inspection, and potentially expert testimony. The Learned Counsel was submitted that the Plaint clearly disclosed triable issues relating to encroachment, nuisance, boundary interference, and interference with enjoyment of land. 13. The Learned Counsel submitted on whether ownership rights entitle unlawful interference and stated that Ownership rights must be exercised within the law. To buttress on this point, the Learned Counsel made reference was made to the holding in the case of:- “***Mumo Matemu & 7 Others – Versus - Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR”,*** where the Court emphasised as follows:- ***"No person... though he is invested with constitutional or statutory rights, is entitled to use those rights in any manner that is prohibited by law or which causes injury to others." That accordingly, ownership of land does not immunise a proprietor from lawful action where his use of land interferes with neighbours' rights or causes nuisance, or is challenged under environmental or land law”.*** 14. The Learned Counsel submitted that the Defendants' reliance in the provision of Article 36 of the Constitution of Kenya, 2010 was misplaced and misconceived in the circumstances of this suit. That while the Constitution safeguards this right as a fundamental freedom, it was trite law that no constitutional right was absolute. Rights under the Bill of Rights must be exercised within the framework of the Constitution and was subject to limitation under the provision of Article 24 where necessary to protect the rights and freedoms of others, as well as other competing legal interests. 15. In the present case, the issues raised by the Defendants clearly call for evidentiary interrogation and judicial determination on merits. Therefore, they fell outside the scope of a Preliminary Objection and ought to be dismissed in limine with costs. 16. Lastly, the Learned Counsel averred that the Preliminary Objection was an attempt to delay the hearing and determination of triable issues, thereby abusing the court process. Thus, it the objection should not be allowed by the court. 17. **Analysis and Determination** 18. This court has keenly considered the pleadings in form of the Plaint instituting the suit, the defence and the Preliminary Objection raised by the 1st Defendant herein, the written submissions, the cited myriad of authorities, the relevant provisions of the Constitution of Kenya, 2010 and the Statutes. 19. In order to arrive at an informed, reasonable and just decision, I have framed the following three [3] salient issues for determination:- 20. ***Whether the Preliminary Objection dated 13th October, 2025*** ***by the 1st & 2nd Defendants meets the threshold of such an objection based on Law and precedents.*** 21. ***Whether the Notice of Preliminary Objection as taken is well founded, valid and merited;*** 22. ***Who will bear the costs of the preliminary objection?*** ***ISSUE No. a). Whether the Preliminary Objection dated 13th October, 2025*** ***by the 1st & 2nd Defendants meets the threshold of such an objection based on Law and precedents.*** 1. Under this Sub – title, the Honourable Curt will be examining the meaning, scope and nature on the concept of **“Preliminary Objection”.** According to the Black 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 preposition has been made in the now “*Classicus Locus”* case of:- ***“Mukisa Biscuits Manufacturing Co. Limited – Versus - West End Distributors Limited (1969) E.A. 696”*** where the court 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 demurer 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. The improper practice should stop***” 1. Sir Charles Newbold, JA in the same case stated that: - ***'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 had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.'*** 1. A **“demurrer*”*** according to the Black’s Law Dictionary has its roots in French law *‘*demorer’ and Latin *‘*demorari*’* and is defined as follows: ***“A pleading stating that although the facts alleged in a complaint may be true, they are insufficient for the Plaintiff to state a claim for relief and for the Defendant.”*** 1. I have further relied on the decision of “***Attorney General & Another – Versus - Andrew Mwaura Githinji & another [2016] eKLR****:* - as it explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection “*inter alia”:* - 2. ***A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.*** 3. ***A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and*** 4. ***The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.*** 5. Similarly, I am guided by the decisions from the Tanzanian Court of Appeal sitting in Dar es Salaam, in “[***Karata Ernest & others – Versus - Attorney General***](https://tanzlii.org/akn/tz/judgment/tzca/2010/30/eng%402010-12-29)***(Civil Revision No 10 of 2020) [2010] TZCA 30 (29 December 2010)”,*** (Luanda, JA, Ramadhani, CJ, Rutakangwa, JJA), put the issue of preliminary objections in a more exhaustive manner as follows: - ***“At the outset we showed that it is trite law that a point of preliminary objection cannot be raised if any fact has to be ascertained in the course of deciding it. It only "consists o f a point of law which has been pleaded, or which arises by dear implication out of the pleading obvious examples include: objection to the jurisdiction of the court; a plea of limitation; when the court has been wrongly moved either by non-citation or wrong citation of the enabling provisions of the law; where an appeal is lodged when there is no right of appeal; where an appeal is instituted without a valid notice of appeal or without leave or a certificate where one is statutorily required; where the appeal is supported by a patently incurably defective copy of the decree appealed from; etc. All these are clear pure points of law. All the same, where a taken point of objection is premised on issues of mixed facts and law that point does not deserve consideration at all as a preliminary point of objection. It ought to be argued in the "normal manner" when deliberating on the merits or otherwise of the concerned legal proceedings.*** 1. Additionally, I am guided by the Supreme Court case in “***Independent Electoral & Boundaries Commission – Versus - Jane Cheperenger & 2 Others [2015] eKLR”*** made the following observation as relates to Preliminary Objections: ***“…The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper fora party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.”*** 1. Further, in the case of:- “***Dismas Wambola – Versus - Cabinet Secretary, Treasury & 5 others (2017) eKLR”****,* the court stated as follows:- ***“A preliminary objection must first, raise a point of law based on ascertained facts and not on evidence. Secondly, if the objection is sustained, that should dispose of the matter. A preliminary objection is in the nature of a legal objection not based on the merits or facts of the case, but must be on pure points of law. It may be noted that preliminary objections are narrow in scope and cannot raise substantive issues raised in the pleadings that may have to be determined by the court after perusal of evidence….”*** 1. Finally, the Court of Appeal in ***“Oraro – Versus – Mbaja (2005) 1KLR 141, Ojwang J*** ( as he then was) stated:***-*** ***“A Preliminary objection correctly understood is now 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 process of evidence”*** 1. In view of the above, it is clear that a preliminary objection should raise pure points of law and which are argued on the assumption that all facts are correct. It is trite law that a preliminary objection can be brought at any time at least before the final conclusion of the case. Ideally, all facts remaining constant, it should be filed at the earliest opportunity of the subsistence of a case, in order to pave way for the smooth management and determination of the main dispute in a matter. From the readings of whatever is raised in the Preliminary Objection, the court is called upon to interrogate the Plaint to determine whether it raises any cause of action. 2. The Oxford Dictionary of Law, Oxford University Press, 5th Ed. 2003 defines “**a Cause of action”** as: ***“The facts that entitle a person to sue. The cause of action may be a wrongful act, such as trespass; or the harm resulting from a wrongful act, as in the tort of negligence.”*** 3. Similarly, in the case of:- “***Muhammad Hafiz – Versus - Muhammad Zakariya [1922] 49 I.A. 9”***, the Privy Council defined a cause of action as follows: - ***“the cause of action is that which gives occasion for and forms the foundation of the suit”*** 4. I wish to start by pointing out that under the provision of Order 2 Rule 15 of the Civil Procedure Rules, 2010the court has power to strike out pleadings on several grounds which includes striking out where the pleading in question does not disclose a reasonable cause of action or defence in law. 5. Be that as it may, the court is convinced that the issue of whether or not the Plaint herein raises a cause of action is an issue of fact and not law. In the given circumstances, the court has to undertake intensive interrogation of the issues surrounding the case – the cause of action. It has go through the contents of the Plaint to establish what it is all about. All what an Applicant needs to do is to state concisely the grounds on which the application is premised to have it struck out. Thus, I discern that the objection raised by the Defendants under the provision of Order 2 Rule 15 of the Civil Procedure Rules, 2010 is unfounded and hence cannot succeed thereof. ***ISSUE No. b). Whether the Notice of Preliminary Objection as taken is well founded, valid and merited;*** 1. However, the fact that the court has to acclimatise itself with the contents of the Plaint is a fact finding mission in itself. The moment the court is called upon in a preliminary objection to determine issues of mixed facts and law, the matter before the Court cannot be described as a preliminary objection taking that it goes against the legal tenets of “***the Mukisa Biscuits case”***. So long as there exists contested issues or what one would call clash of facts cannot form the basis of a preliminary objection, properly so called. 2. I seek refuge from the case of:- “***Attorney General of the United Republic of Tanzania – Versus - African Network for Animal Welfare,*** ***Appeal No. 3 of 2011***” the East African Court of Justice adopted the following approach to preliminary objections, which this Court fully agrees with thus:- ***“All the other so-called preliminary points were not at all preliminary points of law. Each and every one of them involved the clash of facts, the production of evidence, and the assessment of testimony. Any such issue (depicting those features) cannot and should not be treated as a preliminary point. Rather, it becomes a matter of substantive adjudication of the litigation on its merits – with evidence adduced, facts shifted, testimony weighed, witnesses called, examined and cross-examined; and a finding of fact then made by the court.”*** 1. Therefore, taking all the circumstances of the matter into perspective, I find that the Preliminary objection is neither merited, founded nor basis because of the reasons aforestated. ***ISSUE No. b). Who will bear the costs of the preliminary objection dated 13th October, 2025?*** 1. It is trite law that the issue of costs is at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of the legal action and proceedings. The proviso of Section 27 ( 1 ) of Civil Procedure Act, Cap. 21 means costs follow an event. By the event it means the result or outcome of the legal action. The Supreme Court, in the case of:- *“****Rai & 3 others – Versus - Rai & 4 others [2014] KESC 31 (KLR)*** fortified the principle that costs follow the event when it held:- ***“So the basic rule on attribution of costs is: costs follow the event. But it is well recognized that this principle is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the suit”.*** 1. Having interrogated the circumstances of this case and the nature of the final orders granted, the court opines that it will be proper for costs to be in the cause. 2. **Conclusion and Final Orders** 3. In light of the foregoing analysis of the framed issues, I hereby make the following orders:- 4. **THAT the Preliminary Objection dated 13th October, 2025 raised by the 1st & 2nd Defendants herein be and is hereby found to unmeritorious and hence it is dismissed.** 5. **THAT for expediency sake there be a Mention on 14th October, 2026 for conducting a Pre – Trail session pursuant to the provision of Order 11 of the Civil Procedure Rules, 2010. There be a hearing on 25th January, 2027 before ELC No. 1, Kwale preferably through Physical means.** 6. **THAT costs to be in the cause.** **IT IS ORDERED ACCORDINGLY.** **RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS ….21ST……… DAY OF …….JULY …….2026** **………………………………** **HON. MR. JUSTICE L.L NAIKUNI,** **ENVIRONMENT & LAND COURT** **AT** **KWALE.** **Ruling delivered in the presence of: -** 1. Mr. Daniel Disii, the Court Assistant. 2. M/s. Buyengo Advocate holding brief for Mr. Walubengo Advocate for the Plaintiff/Respondent. 3. No appearance for the 1st & 2nd Defendants/Applicants.