https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3830

Waweru v Maina (Environment and Land Case 15 of 2022) [2026] KEELC 3830 (KLR) (23 June 2026) (Ruling) Neutral citation: [2026] KEELC 3830 (KLR) Republic of Kenya In the Environment and Land Court at Nakuru Environment and Land Case 15 of 2022 MAO Odeny, J June 23, 2026 Between Margaret Mumbi Waweru Plaintiff and Veronica Muthoni Maina Defendant Ruling 1.This ruling is in respect of the Notice of Preliminary Objection dated 6th February, 2026 by the Respondent on the following grounds: 1.The Contempt Application is fatally defective and an abuse of process as it allegedly seeks to enforce penal sanctions against a non-party (Veronica Muthoni Maina) instead of Veronica Wambui Maina. 2.This Honourable Court lacks jurisdiction to enforce a judgment against a non-party under Section 5 of the Judicature Act, Cap 8 Laws of Kenya. 3.The underlying suit was against Veronica Wambui Maina, not Veronica Muthoni Maina. 4.The Contempt Application erroneously seeks relief in respect of a title that was never the subject of the original proceedings. 5.The Plaintiff’s Decree and Contempt Application unlawfully attempt to vary the Judgment and enforce it against an unbound person and land not before the Court. Veronica Muthoni Maina’s Submissions 2.Counsel for Veronica Muthoni Maina filed submissions dated 19th February, 2026, and identified the following issues for determination:a.Whether the Honourable court has jurisdiction to enforce a judgment against a person who was not a party to the proceedings.b.Whether the judgment and contempt proceedings are fatally defective due to misidentification of the alleged offender.c.Whether the court can extend enforcement to land not forming part of the original judgment.d.Whether the contempt application constitutes an abuse of court process. 3.On the first issue as to whether the Honourable court has jurisdiction to enforce a judgment against a person who was not a party to the proceedings, counsel relied on the cases of Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, Owners of Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd [1989] KLR 1, where the court held that jurisdiction is everything and without it, the court must lay down its tools. 4.Counsel further relied on Section 34(1) of the Civil Procedure Act, which provides that all questions arising between parties to the suit in which the decree was passed shall be determined by the court executing the decree, hence execution is strictly confined to the parties to the suit and decree as drawn. Counsel further relied on the cases of Abubakar G. Mohamed V Independent Electoral and Boundaries Commission and Japheth Nzila Muangi Vs Kenya Safari Lodges & Hotels Ltd [2008] eKLR, and submitted that a judgment binds only the parties to it which is known as a judgment in personam. A judgment can also be conclusive not only against the parties to it but also against the world, which is known as judgment in rem. 5.Mr. Karanja, argued that where enforcement is directed against Veronica Muthoni Maina, yet the Plaint and Judgment are against Veronica Wambui Maina, the court is being invited to punish for contempt a person who was not a party to the judgment. 6.On the second issue as to whether the judgment and contempt proceedings are fatally defective due to misidentification of the alleged offender, counsel submitted that contempt cases have severe repercussions, including potential deprivation of liberty, and are quasi-criminal in character and relied on the cases of Mutitika vs Baharini Farm Ltd (1985) KECA 60 (KLR), and Republic V Ahmad Abolfathi Mohammed & another [2019], eKLR. 7.Mr. Karanja further submitted that the purported contemnor is Veronica Muthoni Maina, while the decree and judgment are against Veronica Wambui Maina, and therefore the court cannot punish or enforce against an uncertain or ambiguously defined party. 8.On the issue as to whether the court can extend enforcement to land not forming part of the original judgment, counsel relied on the doctrine of functus officio that once a court has delivered judgment it cannot exercise adjudicative or decision-making power except as provided for under section 99 of the Civil Procedure Act on amendment of judgments, decrees and orders. 9.Mr. Karanja also submitted that if the judgment delivered on 7th March 2023 was confined to Plot No. 1707 on Kiambogo/Kiambogo Block 12, the court cannot extend the enforcement to title No. Kiambogo/Kiambogo Block 4/1707, that was never, subject of the proceedings, and cited the case of Independent Electoral and Boundaries Commission V Maina Kiai & 5 Others [2017]eKLR, where the Court of Appeal maintained that a court cannot revisit and change its previous decision. 10.Finally, on the issue as to whether the contempt application constitutes an abuse of the court process, counsel relied on the cases of Muchanga Investments Ltd V Safaris Unlimited Africa Ltd &2 Others [2009] KECA 453 (KLR), and Bainash V Wixley (457/95) [1997]ZASCA ; at page 734F-G, where the court described abuse of court process as improper use of judicial procedure so as to harass or oppress the other party. 11.Counsel therefore urged the court to find merit in the Preliminary objection as the court lacks jurisdiction to hear and determine an application for contempt of court against the Respondent. Applicant’s Submissions 12.Counsel for the Applicant filed submissions dated 23rd February 2026, gave a brief background to the suit and identified one issue for determination as to whether the preliminary objection dated 6th February 2026 is proper before the court. 13.It was counsel’s submission that a preliminary objection is not a procedural device available after judgment to challenge enforcement or execution, as it in its nature and design, is intended to be raised at the earliest opportunity, before the substantive issues in dispute are heard and finally determined. 14.Counsel also stated that it is meant to arrest proceedings where there exists a pure point of law capable of disposing of the matter in limine, as once a court has rendered judgment and conclusively determined the rights of the parties, the stage for raising a preliminary objection on issues that could and ought to have been raised earlier is long past, and would undermine the principle of finality in litigation and distort the orderly progression of proceedings. 15.Counsel relied on the cases of Independent Electoral & Boundaries Commission v Cheperenger & 2 others [2015] KESC 2 (KLR) , Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors [1969] EA 696, Dismas Wambola v Cabinet Secretary, Treasury & 5 others [2017] KEHC 8777 (KLR), Awino & 7 others v Inspector General of Police & 3 others [2024] KEHC 8623 (KLR), Sawe & 134 others v Rono & 3 others [2024] KEHC 4867 (KLR), on the principles of preliminary objections and submitted that it does not meet the threshold as set out in the Mukisa Biscuit case. 16.Counsel submitted that in the present matter, the Respondent’s grounds are inextricably intertwined with contested factual questions, as she disputes her identification in the proceedings and challenges the description of the land parcel cited in the contempt application. Counsel argued that the issues cannot be resolved based on bare legal argument, as they require the Court to examine pleadings, affidavits, documentary exhibits, land registry records, and the procedural history of the case, which is evidentiary in nature and falls squarely outside the realm of a pure point of law. Further, entertaining such matters under the guise of a preliminary objection would amount to conducting a substantive re-hearing through a procedural shortcut. 17.On the issue of alleged misdescription, the Respondent contends that she was never a party to the suit owing to a variation in her middle name, however, counsel submitted that in the Respondent’s own affidavit, she expressly acknowledged that she is indeed the Defendant/Respondent in the matter, clarifying that the discrepancy relates solely to the middle name. She stated: “I am Veronica Muthoni Maina and not Veronica Wambui Maina as indicated in the pleadings… I am the Defendant/Respondent in this matter.” 18.It was counsel’s submission that a misnomer or minor misdescription does not defeat proceedings where the identity of the party is clear, service was affected, and the party actively participated, as such an irregularity is curable and does not divest the court of jurisdiction nor render its decree void. Counsel further stated that to allow a litigant who fully participated in proceedings to evade a decree on the basis of a nominal discrepancy would be to elevate a technicality over substance and to sanction abuse of the court process. 19.On the issue of the alleged difference in the land Parcel Reference, counsel submitted that it is not a ground for invalidating the judgment, as this also raises matters of fact requiring evidentiary clarification. It was counsel’s submission that the Applicant has explained, on oath through her Further Affidavit dated 11th February 2026, that registry records were administratively updated and that the renumbering did not affect the identity or substance of the land subject to the decree. 20.Mr. Muchiri, argued that the issue of whether the parcel described in the contempt application corresponds to that in the original suit is a matter to be determined on evidence, not through a threshold legal objection, as an administrative renumbering, cannot invalidate a judgment. 21.Counsel urged the court to dismiss the preliminary objection and hear the contempt application. Analysis And Determination 22.The issue for determination is whether the preliminary objection meets the fundamental threshold of a preliminary objection as per case of Mukisa Biscuits Manufacturing Company Limited -vs- West End Distributors (1969) EA 696, which held 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 may dispose of the suit. Examples are an objection to the jurisdiction of the Court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit or to refer the dispute to litigation.” 23.A preliminary objection should be purely on points of law. Where m facts are disputed and evidence has to be adduced to prove the existence of such facts, then it is no longer suitable to be handled through a preliminary objection, as was held in the case of John Musakali vs. Speaker County of Bungoma & 4 others (2015) eKLR, 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.” 24.The Applicant Veronica Muthoni Maina has raised two issues in the preliminary objection that there is a misdescription of her name and the land parcel No. She averred that she has never been a party to this suit, which is subject to the judgment under execution. 25.This is a matter where judgment was delivered on 7th March 2023, and the Defendant filed an application for review and setting aside the judgment which was dismissed by the court on 26th October 2023. The Applicant Veronica Muthoni Maina disputes that she is the named defendant in the suit. This issue cannot be determined without proof that she is not the same person in the suit. This is a factual issue where evidence has to be adduced to ascertain the allegation. Furthermore, this is an issue raised through a preliminary objection after judgment. 26.The Civil Procedure Rules, specifically Order 22 Rule 51 provide for how a third party who has an equitable interest in a property that is attached or likely to be attached may file an objection. The contempt application is in respect of the enforcement of the execution which fall within the execution process. Filing of a preliminary objection is not one of the legal options to counter the execution process. The court is being asked to set aside the judgment and find that the Applicant was not a defendant in the judgment and the parcel of land in dispute is different. The court would be engaging in an injustice if it were to uphold the preliminary objection. 27.On 24th March 2026, the court stated that the issue in the Preliminary objection was whether Veronica Muthoni Maina was the same person as Veronica Wambui Maina or a different person altogether. The court gave the Applicant’s counsel an opportunity to produce the two Veronicas but they opted to proceed with the preliminary objections instead. 28.Having found that the preliminary objection does not meet the threshold, the same is hereby dismissed with costs. DATED, SIGNED AND DELIVERED AT NAKURU THIS 23RD DAY OF JUNE 2026.M. A. ODENYJUDGE