https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5115

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC APPEAL NO. E026 OF 2023** **PETER KAMWANI WAITI…………………….......... APPELLANT** **VERSUS** **JORAM MWANJE…………………………..………..1ST RESPONDENT** **WEST KENYA SUGAR CO. LTD………………...2ND RESPONDENT** ***(Being an appeal against the ruling of Hon. R. S. Kipng’eno (PM) delivered on 13th April 2023 in Butali ELC Case No. E205 of 2022)*** **JUDGMENT** **Introduction** 1. This appeal arises from the ruling of Hon. R. S. Kipng’eno (PM) delivered on 13th April 2023 in Butali ELC Case No. E205 of 2022. In the impugned ruling, the trial court upheld the preliminary objection raised by the 1st defendant and held that the lower court lacked jurisdiction to entertain the matters pending before it, namely Butali PMCC No. 126 of 2018 and Butali PMCC No. 2 of 2022, relating to payment of cane proceeds arising from the substantive proceedings in Kakamega ELC No. 65 of 2017, which was still pending determination. Consequently, the trial court downed its tools and declined to proceed with the matters. **Background** 1. The appellant herein, through a plaint dated 24th August 2022 which was amended on 14th September 2022, instituted a suit as the legal representative of the estate of the deceased, whose estate comprised land parcel known as South Kabras/Chesero/974, measuring approximately 9.20 hectares. The appellant’s case was that on or about 16th September 2022, the 1st defendant unlawfully trespassed upon and encroached on the suit property, harvested sugarcane therefrom, and delivered the same to the 2nd defendant’s company for milling under harvesting permit numbers 151453204 and 151459035. 2. The appellant sought, inter alia, an order restraining the 2nd defendant from releasing the proceeds of the harvested sugarcane to the 1st defendant, an order directing that the proceeds arising from the harvested cane be released to the appellant, and costs of the suit. 3. Contemporaneously with the amended plaint, the appellant filed an application dated 14th September 2022 seeking orders that the proceeds from the sugarcane delivered to the 2nd defendant by the 1st defendant vide permit number 151459035 be deposited in court pending the hearing and determination of the suit. 4. In response to the application, the 1st defendant filed a replying affidavit sworn by Joram Mwanje dated 17th September 2022, denying delivery of the sugarcane under the permit number cited by the appellant. He admitted that he had delivered sugarcane vide permit number 151459035 and not 51459035 as alleged. He further contended that the application was mischievous, an afterthought, and an abuse of the court process, arguing that the appellant lacked locus standi to institute the proceedings. 5. The 1st defendant also filed a notice of preliminary objection dated 28th September 2022 on the grounds that the appellant was non-suited; lacked locus standi to institute and prosecute the suit; that the amended plaint was bad in law as it was not clear what the original plaint was and that an affidavit cannot be amended; and that the court lacked jurisdiction to entertain the claim. 6. On 28th March 2023, the trial court, directed that the preliminary objection shall be canvassed by way of written submissions. 7. Upon consideration of the Preliminary objection as well as rival submissions, the trial court delivered its ruling dated 13th April 2023, where it held that the preliminary objection raised fundamental issues touching on its jurisdiction and consequently found that it lacked jurisdiction to determine the dispute. The court therefore declined to proceed further with the matter. 8. Being aggrieved by the trial court’s decision, the appellant lodged the present appeal through a Memorandum of Appeal dated 19th May 2023, raising nine (9) grounds of appeal. The appellant’s main contention is that the trial court erred in upholding the preliminary objection, which had not been properly prosecuted, and in determining that it lacked jurisdiction without affording the appellant an opportunity to be heard on the substantive issues. The appellant contends that the trial court thereby effectively terminated his suit without a hearing on the merits. 9. The appellant consequently seeks the following orders: **a) That the appeal be allowed.** **b) That the ruling delivered on 13th April 2023 be set aside and the appellant’s suit before the Butali court be reinstated and set down for hearing.** **c) That the appellant be awarded the costs of the appeal.** 1. The appeal was canvassed by way of written submissions. The appellant filed submissions dated 8th October 2024, while the respondent did not file any submissions. **Appellant’s submissions** 1. The appellant submitted that the respondent’s Preliminary Objection dated 28th September 2022 was not prosecuted, making it unclear what issues were being contested. He argued that the trial court improperly relied on facts that had not been admitted or proved through evidence, and that there was no connection between the Preliminary Objection as filed and the court’s analysis and findings. The appellant contended that the court violated the principles governing Preliminary Objections by determining factual issues without a hearing or evidence, and further erred by considering matters such as the establishment of a prima facie case, which was not relevant to the determination of a Preliminary Objection. Reliance was placed on the cases of **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696** and **Oraro v Mbaja 2005 (KLR) 141** regarding what constitutes a preliminary Objection. 2. On jurisdiction, the appellant argued that the value of the sugar cane proceeds had not been disclosed by the 2nd respondent and, given the trial court’s pecuniary jurisdiction of up to Kshs. 10 million, the court was likely properly seized of jurisdiction. He further submitted that the trial court erred in directing that the issues be addressed in Kakamega ELC Case No. 65 of 2017 without first comparing the pleadings and causes of action in the two matters. According to the appellant, the parties, causes of action, and issues in the two suits were distinct, and the trial court had jurisdiction to determine the matter. He therefore urged the court to allow the appeal with costs. **Analysis and determination** 1. The court has carefully considered the appeal, parties’ rival submissions and the entire record. The sole issue for determination is whether the trial magistrate erred in upholding the respondent’s Preliminary Objection. 2. The role of this court as a first appellate court is to review the conclusions made by the trial court and decide whether the same should stand or not and give reasons either way. 3. It is settled law that a Preliminary Objection must raise a pure point of law and cannot be sustained where the court is required to ascertain disputed facts or evaluate evidence. In **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696,** the Court of Appeal stated: “***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 may dispose of the suit.”*** 1. The Court 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. Similarly, in **Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 Others [2015] eKLR**, the Supreme Court reaffirmed the principles in Mukisa Biscuit and held: “***A preliminary objection may only be raised on a pure question of law. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts.”*** 1. In **Sum v Kiptanui & Another (Environment and Land Appeal E003 of 2025) [2026] KEELC 528,** the Court reiterated that a preliminary objection founded on jurisdiction is properly taken where the question can be determined from the pleadings alone and does not require the court to resolve disputed facts or receive evidence. 2. A preliminary objection must be clear and precise on the legal basis of the objection and a vague objection cannot be upheld. In the respondent’s preliminary objection, the respondent’s grounds were stated as follows; 3. **The plaintiff was non suited** 4. **The plaintiff had no locus standi to file and prosecute the suit** 5. **The amended plaint is bad in law and it is not clear what the original plaint was and an affidavit cannot be amended** 6. **That the court has no jurisdiction to entertain the claim.** 7. On the question of the claim being nonsuited, the appellant’s claim in the lower court is based on the allegations that he is the registered proprietor of the suit property and that the respondent trespassed thereon and harvested sugarcane which was sold to the 2nd respondent. He sought to recover the cane proceeds. Non suit means that the plaintiff has failed to make out a case and failed to present sufficient evidence. The question of whether the evidence is sufficient or not cannot be a matter capable of being determined on a preliminary objection and therefore that ground fails. 8. Regarding the issue of capacity, there is nothing in the preliminary objection pointing to why the objection is on capacity or which law was offended by the appellant. That ground was vague, lacked legal basis and ought to have failed. 9. On whether the respondent could not tell what the original plaint was, that plaint is part of the record at pages 4 to 6 and it does not take rocket science to see what it is. The issue of amending an affidavit, is not a jurisdictional question as that points to the validity of the affidavit. If the affidavit is invalid, a defendant may seek to have it struck out or the deponent can seek leave to file a fresh affidavit. In any event, if an amended pleading is found to be improper, the former pleading remains in force. Therefore, that ground also fails. 10. On whether the court lacked jurisdiction, the preliminary objection did not particularize which law denied the court jurisdiction. Jurisdiction is granted by the Constitution or statute or both. Therefore, that ground was vague and did not state on which legal basis the court lacked jurisdiction. A party who makes vague allegations in a preliminary objection cannot seek to fill the gaps through submissions. Submissions are not pleadings and cannot substitute pleadings. 11. That being the case, the respondent’s preliminary objection dated 28th September 2022 was vague and did not raise a single pure point of law. The same therefore lacked merit and ought to have been dismissed. 12. While the trial court indicated that it was dealing with the preliminary objection it fell into error by going beyond the preliminary objection, as it contradicted is own directions and considered matters not raised in the preliminary objection, including matters raised in other matters relating to the same facts as those in this case. 13. In the premises, this appeal succeeds and the same is hereby allowed. I therefore set aside the trial court ruling of 13th April 2023 and substitute it with an order dismissing the respondent’s preliminary objection dated 28th September 2022 with costs. The costs of this appeal shall be borne by the respondent. 14. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 29TH DAY OF JULY 2026** **A. NYUKURI** **JUDGE** **In the presence of;** Ms Rauto for the appellant No appearance for the respondents Court Assistant: Delphine