https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4237

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELCLC NO. E499 OF 2025** **JESSICA GAIL PAUL..............................................PLAINTIFF/APPLICANT** **VERSUS** **AMBER MEDICAL CLINIC LIMITED……….1ST DEFENDANT/RESPONDENT** **GERT KRIEK…………….......................…….2ND DEFENDANT/RESPONDENT** **RULING** 1. Before this court for determination is the notice of motion dated 27th November, 2025, the notice of preliminary objection dated 27th November, 2025 and the notice of preliminary objection dated 6th February, 2026 respectively. The notice of motion dated 27th November, 2025 is filed by the plaintiff/applicant and it is expressed to be brought under **Order 2 rule 15(1) (b)(c)** & **(d)** and **Order 51 Rule 1** of the Civil Procedure Rules seeking the following orders:- 2. ***That the defendants’ statement of defence dated 17th November, 2025 be struck out with costs to the plaintiff.*** 3. ***That judgment be entered against the defendants in favour of the plaintiff as prayed in the plaint.*** 4. ***That costs of and occasioned by this application be borne by the defendants.*** 5. The application is supported by the affidavit of the plaintiff/applicant sworn on even date. She deposed that the statement of defence filed by the defendants/respondents ought to be struck out as it comprises of denial of facts without supporting evidence and does not raise any triable issues. Further, that it is scandalous, frivolous, vexatious and an abuse of the court process. 6. The defendants filed the notice of preliminary objection dated 27th November, 2025 challenging the suit on the following grounds:- 7. ***That the honourable court is bereft of jurisdiction as this matter is over enforcement of a civil contract that is not pursuant to the provisions of Section 26 of the Environment and Land Court Act.*** 8. ***That the suit amounts to an abuse of the court process and ought to be struck out with costs.*** 9. The defendants filed the notice of preliminary objection dated 6th February, 2026 challenging the plaintiff’s suit on the following grounds: - 10. ***That the sale agreement annexed in the plaintiff’s list of documents stipulates that all disputes can only be resolved through arbitration therefore making this honourable court lack jurisdiction in the first instance.*** 11. ***The defendants shall on the foregoing grounds apply that this suit be dismissed with costs.*** 12. The application and the preliminary objections were canvassed through written submissions. The defendants/respondents filed their written submissions dated 3rd March, 2026 and 13th March, 2026. The plaintiff/applicant filed written submissions dated 9th February, 2026. I have considered the application and the preliminary objections as well as the written submissions filed by both parties. The issues for determination is *whether both preliminary objections ought to be upheld* and *whether the application has merit*. 13. I will begin with the preliminary objections. 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...”*** 1. 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.”*** 1. 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...”*** 1. 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 off the issue that is before court without going to trial and lastly, the same ought to stem from and not outside of pleadings. 2. The notice of preliminary objection dated 27th November, 2025 challenges the jurisdiction of this court to hear and determine the suit on grounds that the same is on enforcement of a contract. Indeed, jurisdiction is everything, and without it the court cannot take any further step as regards the issues before it. The plaintiff/applicant filed the plaint dated 23rd September, 2025. A plain reading of the plaint indicates that the dispute between the parties stems from the agreement of sale dated 31st January, 2020 which has undergone several subsequent variations. The agreement concerns the sale and purchase of property known as LR No. 1160/807 original no. 1160/162/3. It appears that compliance with the terms of the various agreements have bore no fruit hence this suit. 3. **Section 13 (2)** of the **Environment and Land Court Act** provides:- ***“In exercise of its jurisdiction under Article 162(2)(b) of the constitution, the court shall have power to hear and determine disputes—*** 1. ***relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;*** 2. ***relating to compulsory acquisition of land;*** 3. ***relating to land administration and management;*** 4. ***relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and*** 5. ***any other dispute relating to environment and land.” With emphasis.*** 6. From the above, it is clear that this court has jurisdiction to hear and determine disputes relating to interest in land acquired by purchase through an agreement for sale. Whether or not the contract is enforceable cannot be determined in limine as that would be engaging in a mini trial which is not within the purview of a preliminary objection. Particularly, any amounts due and owing can only be argued during trial. Any attempt to look at the evidence as invited by the defendant/respondent defeats the purpose of objection. 7. The notice of preliminary objection dated 6th February, 2026 maintains that this court lacks jurisdiction by virtue of the arbitration clause contained in the agreement. The defendants/respondents urge the court to dismiss this suit as a result thereof. It should be noted that a preliminary objection must contain undisputed facts with the ability to dispose the suit without going into trial. 8. The defendants/respondents filed their statement of defence dated 17th November, 2025 and denied the contents of the plaint. In paragraph 4, the defendants admitted the jurisdiction of this court based on the contents of paragraphs 15, 16 & 17 of the plaint. In admitting the jurisdiction of this court, it means that the defendants/respondents were ready to subject themselves to court process in a bid to resolve the dispute. If say the defendants/respondents indeed believe that this court has no jurisdiction to hear and determine the dispute because of the arbitration clause, an application seeking stay of these proceedings should have accompanied the memorandum of appearance and before the filing of the statement of defence. 9. **Section 6 (1)** and **(2)** of the **Arbitration Act Cap 49** provides as follows:- ***“A court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than the time when that party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration unless it finds—*** ***(a) that the arbitration agreement is null and void, inoperative or incapable of being performed; or*** ***(b) that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration.*** ***(2) Proceedings before the court shall not be continued after an application under subsection (1) has been made and the matter remains undetermined.”*** 1. In the case of **Adrec Limited v Nation Media Group Limited [2017] KECA 106 (KLR)**, the court stated:- ***“It should be emphasized that the right to seek and obtain stay of proceedings under section 6(1) of the Arbitration Act is lost the moment a defence is filed in the proceedings. By dint of the defence, the party filing it subjects itself to jurisdiction of the court and cannot thereafter resile from that position.”*** 1. Also, in **Niazsons (K) Ltd v China Road & Bridge Corporation Kenya [2001] KECA 376 (KLR)**, the court observed as follows:- ***“It appears to me that all an applicant is obliged to do is to bring his application promptly. The court will then be obliged to consider three basic aspects. First, whether the applicant has taken any step in the proceeding other than the steps allowed by the said section. Second, whether there are any legal impediments on the validity, operation or performance of the arbitration agreement. Third, whether the suit indeed concerns a matter agreed to be referred.”*** 1. By filing their statement of defence, the defendants/respondents forfeited their right to have the dispute resolved through arbitration. They did not make a prompt application once they filed a memorandum of appearance. It cannot be heard that three months later, they are of the view that the dispute between the parties should proceed for arbitration. This brings me to the conclusion that both preliminary objections lack merit. This court has the jurisdiction to hear and determine this matter. 2. Turning to the application, the plaintiffs/applicants contended that the statement of defence ought to be struck out as it consists of mere denials and does not raise triable issues. **Order 2 rule 15** of the **Civil Procedure Rules** provides:- ***“(1) At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—*** * 1. ***it discloses no reasonable cause of action or defence in law; or*** 2. ***it is scandalous, frivolous or vexatious; or*** 3. ***it may prejudice, embarrass or delay the fair trial of the action; or*** 4. ***it is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.*** ***(2) No evidence shall be admissible on an application under subrule (1)(a) but the application shall state concisely the grounds on which it is made.”*** 1. It has been stated severally that striking out pleadings is a remedy to be adopted as a last resort, and the discretion allowing for the same should be used sparingly and only in the clearest of cases. Indeed, a defence can be struck out if it discloses no reasonable cause of action; or it is scandalous, frivolous and vexatious; or it may prejudice, embarrass, or delay the fair trial of an action; or it is otherwise an abuse of the process of court. 2. The statement of defence 17th November, 2025 consists of denials and puts the plaintiff to strict proof. As I understand the defendants/respondents, merely denying the contents of the plaint does not mean that the defence does not raise triable issues. In fact, they are simply saying that they do not agree with all the statements made by plaintiff/applicant and would want her to prove the same. In denying that they do not owe the plaintiff/applicant any money, the court must assess through trial what amounts, if any, is outstanding. 3. In my view, the plaintiff/applicant is called to prove all the claims to the required standard. The statement of defence is neither scandalous, frivolous, or vexatious, to warrant striking out. 4. From the above, I find no merit in the notice of motion dated 27th November, 2025, the notice of preliminary objection dated 27th November, 2025 and the notice of preliminary objection dated 6th February, 2026. They are all hereby dismissed. Costs shall be in the cause. It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY** **THIS 9TH DAY OF JULY, 2026.** **HON. MBOGO C.G.** **JUDGE** **09/07/2026.** ***In the presence of:*** *Ms. Benson Agunga - Court assistant* *Ms. Tanui for the Plaintiff/Applicant* *Mr. Sala for the Defendants/Respondents*