Introduction
1. A brief background of the Appeal, the subject matter of this judgment, as can be gathered from the Record of Appeal filed herein dated 25 th November, 2025, is that BOMET COUNTY ASSEMBLY SERVICE BOARD, the Appellant herein, sued the Respondents vide the Plaint dated 12 th February, 2024 in BOMET SPMCC No. E006 of 2024. The subject matter of the suit was a parcel of land known as KERICHO/ITEMBE/1549 (herein the suit land) registered in the joint names of the 1 st and 2 nd Respondents.
2. The Appellant’s case in the suit was that it disbursed a loan of Kshs. 10,000,000/= to the 1 st Respondent, who was a member of staff. That the loan was secured by an informal charge over the suit land. That over time, the Respondent failed and/or refused to repay the loan facility as agreed and fell into arrears of Kshs. 8,649,167/=. That despite the existence of the informal charge, the Respondents, acting with a deliberate intent to impede or nullify the Appellant’s interest in the suit land, orchestrated a conveyance to a Third Party, the 3 rd Respondent herein.
3. The Appellant’s contention was that transfer of the suit land to the 3rd Respondent was marred by fraud and illegalities. The Appellant therefore sought a declaration that the sale of the suit land to the Interested Party was illegal, null and void, an order of cancellation of the sale and transfer of the suit land to the Interested Party, an order that the Appellant be granted leave to sell either by public auction or private treaty all the parcel of land known as KERICHO/ITEMBE/1549 to recover the outstanding loan balance of Kshs. 8,649167/=, a declaration that the Appellant is entitled to vacant possession of the suit land; and an order that the Respondents do grant the Appellant vacant possession of the suit land. In the alternative, the Appellant sought that judgment be entered in its favour and against the Respondents for the outstanding sum of Kshs. 8,649,147/=, costs of the suit and interest on the amount of the outstanding loan and costs at commercial rate from the date of filing the suit until payment in full.
4. The record shows that in response to the Appellant’s claim, the 1 st Respondent filed a Statement of Defence dated 13 th June, 2024, vide which she denied parts of the contents of the Plaint and admitted the contents of paragraphs 1 – 6 and 10 thereof
5. The 2 nd Respondent filed Statement of Defence of the 2 nd Defendant dated 13 th June, 2024, vide which he denied liability.
6. The 3 rd Respondent filed the 3 rd Defendant’s Statement of Defence, vide which he denied the Appellant’s claim and pleaded that he bought the suit land from the 1 st and 2 nd Respondents in good faith.
7. The record further shows that in the pendency of the suit and based on the contents of the Statement of Defence filed by the 1 st Respondent, the Appellant filed a Notice of Motion Application dated 16 th August, 2024 (herein called the Application), expressed to be brought pursuant to the provisions of Order 13 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules 2010 and sections 1A & 3A of the Civil Procedure Act.
8. The Application sought the following orders: -
(a) The Application be certified urgent and be fixed for hearing and determination on a priority basis.
(b) Judgment be entered on admission against the 1 st Defendant for the sum of Kshs. 8,649,147/= together with costs and interest thereon without waiting for determination of any other question between the Parties.
(c) Costs of the Application be provided for.
9. The record shows further that the 3 rd Respondent responded to the Application by filing Grounds of Opposition dated 30 th September, 2024.
10. The record shows that the Application was heard by way of written submissions pursuant to directions given on 1 st October 2024 and that the trial Court, vide its ruling dated 4 th February, 2025 (herein called the ruling), found that it was only fair and just that the case should proceed to a logical conclusion where issues about every Defendant would be addressed. The court dismissed the Application with no order as to costs. The Ruling is the subject of the appeal herein.
The Appeal :
11. Aggrieved by the ruling, the Appellant preferred the present appeal vide the Memorandum of Appeal dated 12 th February, 2025. The Appellant seeks that;
(i) The entire Ruling of Honourable Esther Boke (Chief Magistrate) in the Magistrate’s Court at Bomet dated 4 th February, 2025 in Bomet SPMC ELC E006 of 2024 be set aside
(ii) Judgment on admission be entered against the 1 st Defendant/Respondent in the sum of Kshs. 8,649,167/= together with costs and interest thereon without waiting for the determination of any other questions between the parties
(iii) The costs of the Appeal be borne by the Respondents.
12. The Record shows that in the pendency of the Appeal, the 1 st and 2 nd Respondents raised a Preliminary Objection vide Notice of Preliminary Objection dated 16 th February, 2026. Vide its orders made on 4 th February, 2026 and 25 th February, 2026, the Court directed, inter alia, that the Preliminary Objection be canvassed together with the Appeal by way of written submissions.
Submissions:
13. Written submissions dated 10 th April, 2026 were filed by Chege Kibathi & Company Advocates on behalf of the Appellant; written submissions dated 25 th May, 2026 were filed by Kenslaw Associates Advocates on behalf of the 1 st and 2 nd Respondents, and written submissions dated 25 th May, 2026 were filed by Tengekyon and Koske Co. Advocates on behalf of the 3 rd Respondent.
Issues for determination:
14. The Memorandum of Appeal raises 7 Grounds of Appeal for determination herein, namely;
a. The trial Court erred in law and fact in misapprehending the facts, applying the wrong legal principles and arriving at the wrong decision to the prejudice of the Appellant
b. The trial Court erred in fact in dismissing the Appellant’s Application dated 16 th August, 2024 by failing to consider the admissions by the 1 st Respondent in her Statement of Defence and witness statement.
c. The trial Magistrate erred in law and in fact by failing to consider that the admissions by the 1 st Respondent were clear, unambiguous and sufficient for the Court to enter Judgment against her.
d. The learned Magistrate erred in law and fact by failing to enter judgment on admission against the 1 st Respondent in the sum of Kshs. 8,649,167.00 despite her express admission of default in repayment.
e. The trial Magistrate erred in law and fact by failing to appreciate that the claim and the interests of the Appellant and the 3 rd Respondent are distinct and independent from each other.
f. The trial Court erred in law and in fact by ignoring the submissions and authorities filed in support of the Appellant's case.
g. The trial Court erred in law and in fact by basing her Ruling on irrelevant considerations.
15. The Preliminary Objection, on the other hand, was based on the grounds that the trial Court lacked jurisdiction to entertain the dispute before it and sought:
a) A declaration that the ELC (Magistrate’s Court) at Bomet lacked jurisdiction to entertain and determine the suit.
b) An Order setting aside and quashing the entire proceedings in the suit.
c) An order declaring all pleadings, orders, rulings and proceedings in the suit as null and void ab initio.
d) An order dismissing the Appellant’s suit with costs to the Respondent.
e) An order that the Appeal filed by the Appellant is incompetent and ought to be struck out for being an Appeal from proceedings that were null and void.
f) Costs of the Preliminary Objection and of the entire suit.
g) Such further or other relief as the Court may deem just and expedient to grant.
16. From the Grounds of Appeal and the Preliminary Objection, the following emerge as the issues for determination;
i. Whether or not the Preliminary Objection is properly before the Court.
ii. Whether or not the trial Court had jurisdiction to entertain the dispute before it.
iii. Whether or not the trial Court erred in dismissing the Application dated 16 th August, 2024.
iv. Whether or not the Appeal has merit.
v. Costs.
Analysis and determination:
17. This being a first appeal, this court is obligated to re-analyse the evidence/material placed before the trial court and draw its own conclusions. In Selle & Another vs Associated Motor Boat Company Limited and Others [1968] EA 123, it was held that a court handling a first appeal is not necessarily bound to accept the findings of fact by the court below. It stated
“An appeal to this court is by way of retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusion, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.”
Guided accordingly, I proceed to determine the issues herein.
The first issue for determination is whether or not the Preliminary Objection is properly before the Court.
18. The Preliminary Objection raised is based on the plea of jurisdiction. None of the Respondents raised the issue of jurisdiction of the trial Court vide their respective Statements of Defence, their responses to the Application dated 16.8.2024, or at all. The issue of lack of jurisdiction is being raised for the first time at the appellate stage.
19. It was submitted on behalf of the Appellant that jurisdiction of the trial Court was not challenged before the trial Court, that the 1 st and 2 nd Defendants filed their documents in readiness for the hearing on 20 th August, 2024 and actively participated in the proceedings from the date of filing suit on 6 th July, 2024. That the said Preliminary Objection ought to have been before the trial Court.
20. On behalf of the 1 st and 2 nd Respondents, it was submitted that their participation in the trial was in good faith at the initial stage, before the full ramifications of the Appellant’s misconceived forum became apparent. That the Plaint contains an alternative prayer for a simple money judgment – which crystallized the purely contractual character of the claim as proceedings advanced. That jurisdiction being a pure point of law going to the root of the matter, may be raised at any stage including on Appeal.
21. The 3 rd Respondent concurred with the 1 st and 2 nd Respondents.
22. The role of this Court as an Appellate Court is to determine the Appeal before it in accordance with the provisions of section 78 of the Civil Procedure Act Cap 21. Although the issue of jurisdiction of the trial Court was not a matter canvassed before the trial Court or placed before this Court in the Appeal for determination, and although there is no cross-appeal filed by any of the Respondents on the issue of jurisdiction, the issue of jurisdiction may be raised at any stage of the proceedings; hence the preliminary objection is properly before the court.
23. The threshold for Preliminary Objections was set in the case of Mukisa Biscuit Manufacturing Co. Ltd – vs- West End Distributors Ltd [1969] E. A 696, where it was held that:
“…a Preliminary Objection consists of a point of law which has been pleaded, or which 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 a contract giving rise to the suit to refer the dispute to arbitration.’’
24. The 1 st Respondent’s case is that the issue of jurisdiction arises from the pleadings filed by the Plaintiff before the trial court. The 1 st and 2 nd Respondents contend that the trial court had no jurisdiction to entertain the suit. They contend that the Environment and Land Court (Magistrate’s Court) at Bomet lacked jurisdiction ab initio to entertain and determine the suit, as the core dispute concerned recovery of a staff loan, being a purely contractual matter falling outside the scope of section 13(2) of the Environment and Land Court Act, 2011, and that the suit before the trial Court did not and does not involve any dispute relating to;
a) Title, ownership or possession of land
b) Use or occupation of land
c) Environmental planning, protection or management
d) Compulsory acquisition of land
e) Any other matter enumerated in Section 13(2) of the Environment and Land Court Act, 2011 together with Article 162(2) of the Constitution of Kenya, 2010.
25. The 1 st and 2 nd Respondents further contend that the proper forum for determination of a contractual loan recovery dispute is either the Civil Division of the Magistrate’s Court for ordinary Civil matters or the Commercial Court for commercial disputes and not the Environment and Land Court.
26. It was submitted further on behalf of the 1 st and 2 nd Respondents that the governing principle as set in the case of Owners of Motor Vessel “Lillian S” =VS= Caltex Oil (Kenya) Ltd. [1989] KLR 1 is that;
“Jurisdiction is everything. Without it, a Court has no power to take one more step….”
27. Counsel relied on Section 13(2) of the Environment and Land Court Act and Article 162(2)(b) of the Constitution of Kenya 2010. Counsel cited the case of Co-Operative Bank of Kenya Limited =VS= Patrick Kangethe Njuguna & 5 others [2017] KECA 79 (KLR) where it was held that the Environment and Land Court lacked jurisdiction to deal with contracts of mortgage, the collection of dues and rents which fall within the civil jurisdiction of the High Court.
28. Counsel submitted that the substance of the dispute was a debt recovery action. Counsel submitted further that the unregistered charge vested nothing in the Appellant's favour, that the loan was advanced to the 1 st Respondent on an unsecured basis – making it a pure contractual arrangement as no charge was ever perfected. That there was no informal charge in any legally meaningful sense.
29. Counsel submitted further that the characterization of the dispute as involving land fraud does not rescue the Appellant’s jurisdictional position. That the Appeal was incompetent and urged the Court to uphold the Preliminary Objection and set aside the proceedings of the trial Court and dismiss both the suit and the appeal.
30. On behalf of the Appellant, it was submitted that the cause of action in the Plaint related to the interest held by the Appellant in the suit property. That the cause of action involved land fraud. That the relief sought in the Plaint can only be granted by the Environment and Land Court and is within the jurisdiction of the Court. Counsel urged the Court to dismiss the Preliminary Objection.
31. As submitted by the 1 st and 2 nd Respondents, jurisdiction is everything, as held in the case of Owners of Motor Vessel “Lillian S” . From the cause of action disclosed and the relief sought in the Plaint, the core complaint was the 1 st and 2 nd Respondents’ fraudulent disposal of the suit land which, according to the Appellant, was charged vide an informal charge to secure a Staff Loan advanced to the 1 st Respondent. Whether the informal charge was perfected or not was to be a matter to be proved through production of evidence.
32. The prayer for the Outstanding Staff Loan was an alternative prayer and ancillary to the prayers for recovery of the land which was the substantive/predominant claim. Section 26 of the Environment and Land Court Act and section 9 of the Magistrate Courts Act give jurisdiction to the Magistrate Court jurisdiction to hear and determine environment and land cases. I find that the trial Court had jurisdiction to entertain the suit.
33. The Court finds in respect of the 1 st and 2 nd issues is that the preliminary objection is properly before the Court; the same lacks merit.
The next issue for determination is whether or not the trial court erred in dismissing the Application dated 16 th August, 2024.
34. The Appellant faults the trial Court for dismissing the Application. It is evident from the Defence that the 1 st Respondent admitted her indebtedness to the Appellant. She admitted the contents of paragraphs 1-6 and 10 of the plaint. It is in paragraph 10 of the plaint that the Appellant had pleaded that the Defendants had failed, refused and/or ignored to repay the loan facility within the set and agreed timelines and were currently in arrears to the tune of Kshs 8,649,167/=. The 1 st Respondent stated in paragraph 4 of her Defence that she admitted that there were outstanding loan repayments but denied willful failure to repay and attributed her inability to repay to unexpected financial difficulties after leaving employment.
35. Order 13 Rule 2 of the Civil Procedure Rules, pursuant to which the application had been brought, provides that admissions may be in pleadings or otherwise and that judgment may be entered without a full trial where the admission is sufficient. Order 13, Rule 1 stipulates that,
“Any party to a suit may give notice by his pleading, or otherwise in writing, that he admits the truth of the whole or part of the case of any other party.”
And Order 13, Rule 2 that
“Any party may at any stage of a suit, where admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the court may upon such application make such order, or give such judgment, as the court may think just.
36. In Choitram & another v Nazari (Civil Appeal 8 of 1982) [1984] KECA 116 (KLR) (20 January 1984) (Judgment), it was held that admissions are not confined to formal pleadings; they may also be found in correspondence, affidavits, draft agreements, or other admitted documents. The words "or otherwise" in the rule are broad enough to encompass these forms of admission. Judgment on admission remains discretionary, but where admissions are clear, unequivocal, and leave no real issue to be tried, the court may grant judgment without a full trial.
37. The 1 st Respondent having admitted indebtedness, the court ought to have proceeded to enter judgment on the basis of the admission and in favour of the Appellant. This would then terminate the quest for the substantive prayers in the plaint. I find that the trial court erred in dismissing the Application.
38. For the foregoing reasons, the court finds that the Appeal has merit and hereby allows it and makes the following orders
i. the ruling of the trial court dated 4 th February 2025 is set aside and substituted with an order allowing the application dated 16 th August 2024 in the terms that judgment is hereby entered on admission against the 1 st Defendant/Respondent for the sum of Kshs. 8,649,147/= together with interest thereon at court rates from the date hereof to the date of full payment.
ii. Costs of the Application are awarded to the applicant to be borne by the 1 st Respondent.
ii. Costs of the appeal herein are awarded to the appellant to be borne by the 1 st Respondent.
Orders accordingly.
Judgment delivered, dated and signed at Bomet and delivered virtually this 17 th Day of September, 2026.
E. ASATI,
JUDGE.
In the presence of
Zaddy Sang: Court Assistant.
Wanda for the appellant.
Keter for the 1 st and 2 nd Respondents.
No appearance for the 3 rd Respondent.
BOMET ELC ELCA NO. E005 OF 2026 – JUDGMENT BOMET ELC ELCA NO. E005 OF 2026 – JUDGMENT BOMET ELC ELCA NO. E005 OF 2026 – JUDGMENT BOMET ELC ELCA NO. E005 OF 2026 – JUDGMENT 12121212
1. A brief background of the Appeal, the subject matter of this judgment, as can be gathered from the Record of Appeal filed herein dated 25 th November, 2025, is that BOMET COUNTY ASSEMBLY SERVICE BOARD, the Appellant herein, sued the Respondents vide the Plaint dated 12 th February, 2024 in BOMET SPMCC No. E006 of 2024. The subject matter of the suit was a parcel of land known as KERICHO/ITEMBE/1549 (herein the suit land) registered in the joint names of the 1 st and 2 nd Respondents.
2. The Appellant’s case in the suit was that it disbursed a loan of Kshs. 10,000,000/= to the 1 st Respondent, who was a member of staff. That the loan was secured by an informal charge over the suit land. That over time, the Respondent failed and/or refused to repay the loan facility as agreed and fell into arrears of Kshs. 8,649,167/=. That despite the existence of the informal charge, the Respondents, acting with a deliberate intent to impede or nullify the Appellant’s interest in the suit land, orchestrated a conveyance to a Third Party, the 3 rd Respondent herein.
3. The Appellant’s contention was that transfer of the suit land to the 3rd Respondent was marred by fraud and illegalities. The Appellant therefore sought a declaration that the sale of the suit land to the Interested Party was illegal, null and void, an order of cancellation of the sale and transfer of the suit land to the Interested Party, an order that the Appellant be granted leave to sell either by public auction or private treaty all the parcel of land known as KERICHO/ITEMBE/1549 to recover the outstanding loan balance of Kshs. 8,649167/=, a declaration that the Appellant is entitled to vacant possession of the suit land; and an order that the Respondents do grant the Appellant vacant possession of the suit land. In the alternative, the Appellant sought that judgment be entered in its favour and against the Respondents for the outstanding sum of Kshs. 8,649,147/=, costs of the suit and interest on the amount of the outstanding loan and costs at commercial rate from the date of filing the suit until payment in full.
4. The record shows that in response to the Appellant’s claim, the 1 st Respondent filed a Statement of Defence dated 13 th June, 2024, vide which she denied parts of the contents of the Plaint and admitted the contents of paragraphs 1 – 6 and 10 thereof
5. The 2 nd Respondent filed Statement of Defence of the 2 nd Defendant dated 13 th June, 2024, vide which he denied liability.
6. The 3 rd Respondent filed the 3 rd Defendant’s Statement of Defence, vide which he denied the Appellant’s claim and pleaded that he bought the suit land from the 1 st and 2 nd Respondents in good faith.
7. The record further shows that in the pendency of the suit and based on the contents of the Statement of Defence filed by the 1 st Respondent, the Appellant filed a Notice of Motion Application dated 16 th August, 2024 (herein called the Application), expressed to be brought pursuant to the provisions of Order 13 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules 2010 and sections 1A & 3A of the Civil Procedure Act.
8. The Application sought the following orders: -
(a) The Application be certified urgent and be fixed for hearing and determination on a priority basis.
(b) Judgment be entered on admission against the 1 st Defendant for the sum of Kshs. 8,649,147/= together with costs and interest thereon without waiting for determination of any other question between the Parties.
(c) Costs of the Application be provided for.
9. The record shows further that the 3 rd Respondent responded to the Application by filing Grounds of Opposition dated 30 th September, 2024.
10. The record shows that the Application was heard by way of written submissions pursuant to directions given on 1 st October 2024 and that the trial Court, vide its ruling dated 4 th February, 2025 (herein called the ruling), found that it was only fair and just that the case should proceed to a logical conclusion where issues about every Defendant would be addressed. The court dismissed the Application with no order as to costs. The Ruling is the subject of the appeal herein.
The Appeal :
11. Aggrieved by the ruling, the Appellant preferred the present appeal vide the Memorandum of Appeal dated 12 th February, 2025. The Appellant seeks that;
(i) The entire Ruling of Honourable Esther Boke (Chief Magistrate) in the Magistrate’s Court at Bomet dated 4 th February, 2025 in Bomet SPMC ELC E006 of 2024 be set aside
(ii) Judgment on admission be entered against the 1 st Defendant/Respondent in the sum of Kshs. 8,649,167/= together with costs and interest thereon without waiting for the determination of any other questions between the parties
(iii) The costs of the Appeal be borne by the Respondents.
12. The Record shows that in the pendency of the Appeal, the 1 st and 2 nd Respondents raised a Preliminary Objection vide Notice of Preliminary Objection dated 16 th February, 2026. Vide its orders made on 4 th February, 2026 and 25 th February, 2026, the Court directed, inter alia, that the Preliminary Objection be canvassed together with the Appeal by way of written submissions.
Submissions:
13. Written submissions dated 10 th April, 2026 were filed by Chege Kibathi & Company Advocates on behalf of the Appellant; written submissions dated 25 th May, 2026 were filed by Kenslaw Associates Advocates on behalf of the 1 st and 2 nd Respondents, and written submissions dated 25 th May, 2026 were filed by Tengekyon and Koske Co. Advocates on behalf of the 3 rd Respondent.
Issues for determination:
14. The Memorandum of Appeal raises 7 Grounds of Appeal for determination herein, namely;
a. The trial Court erred in law and fact in misapprehending the facts, applying the wrong legal principles and arriving at the wrong decision to the prejudice of the Appellant
b. The trial Court erred in fact in dismissing the Appellant’s Application dated 16 th August, 2024 by failing to consider the admissions by the 1 st Respondent in her Statement of Defence and witness statement.
c. The trial Magistrate erred in law and in fact by failing to consider that the admissions by the 1 st Respondent were clear, unambiguous and sufficient for the Court to enter Judgment against her.
d. The learned Magistrate erred in law and fact by failing to enter judgment on admission against the 1 st Respondent in the sum of Kshs. 8,649,167.00 despite her express admission of default in repayment.
e. The trial Magistrate erred in law and fact by failing to appreciate that the claim and the interests of the Appellant and the 3 rd Respondent are distinct and independent from each other.
f. The trial Court erred in law and in fact by ignoring the submissions and authorities filed in support of the Appellant's case.
g. The trial Court erred in law and in fact by basing her Ruling on irrelevant considerations.
15. The Preliminary Objection, on the other hand, was based on the grounds that the trial Court lacked jurisdiction to entertain the dispute before it and sought:
a) A declaration that the ELC (Magistrate’s Court) at Bomet lacked jurisdiction to entertain and determine the suit.
b) An Order setting aside and quashing the entire proceedings in the suit.
c) An order declaring all pleadings, orders, rulings and proceedings in the suit as null and void ab initio.
d) An order dismissing the Appellant’s suit with costs to the Respondent.
e) An order that the Appeal filed by the Appellant is incompetent and ought to be struck out for being an Appeal from proceedings that were null and void.
f) Costs of the Preliminary Objection and of the entire suit.
g) Such further or other relief as the Court may deem just and expedient to grant.
16. From the Grounds of Appeal and the Preliminary Objection, the following emerge as the issues for determination;
i. Whether or not the Preliminary Objection is properly before the Court.
ii. Whether or not the trial Court had jurisdiction to entertain the dispute before it.
iii. Whether or not the trial Court erred in dismissing the Application dated 16 th August, 2024.
iv. Whether or not the Appeal has merit.
v. Costs.
Analysis and determination:
17. This being a first appeal, this court is obligated to re-analyse the evidence/material placed before the trial court and draw its own conclusions. In Selle & Another vs Associated Motor Boat Company Limited and Others [1968] EA 123, it was held that a court handling a first appeal is not necessarily bound to accept the findings of fact by the court below. It stated
“An appeal to this court is by way of retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusion, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.”
Guided accordingly, I proceed to determine the issues herein.
The first issue for determination is whether or not the Preliminary Objection is properly before the Court.
18. The Preliminary Objection raised is based on the plea of jurisdiction. None of the Respondents raised the issue of jurisdiction of the trial Court vide their respective Statements of Defence, their responses to the Application dated 16.8.2024, or at all. The issue of lack of jurisdiction is being raised for the first time at the appellate stage.
19. It was submitted on behalf of the Appellant that jurisdiction of the trial Court was not challenged before the trial Court, that the 1 st and 2 nd Defendants filed their documents in readiness for the hearing on 20 th August, 2024 and actively participated in the proceedings from the date of filing suit on 6 th July, 2024. That the said Preliminary Objection ought to have been before the trial Court.
20. On behalf of the 1 st and 2 nd Respondents, it was submitted that their participation in the trial was in good faith at the initial stage, before the full ramifications of the Appellant’s misconceived forum became apparent. That the Plaint contains an alternative prayer for a simple money judgment – which crystallized the purely contractual character of the claim as proceedings advanced. That jurisdiction being a pure point of law going to the root of the matter, may be raised at any stage including on Appeal.
21. The 3 rd Respondent concurred with the 1 st and 2 nd Respondents.
22. The role of this Court as an Appellate Court is to determine the Appeal before it in accordance with the provisions of section 78 of the Civil Procedure Act Cap 21. Although the issue of jurisdiction of the trial Court was not a matter canvassed before the trial Court or placed before this Court in the Appeal for determination, and although there is no cross-appeal filed by any of the Respondents on the issue of jurisdiction, the issue of jurisdiction may be raised at any stage of the proceedings; hence the preliminary objection is properly before the court.
23. The threshold for Preliminary Objections was set in the case of Mukisa Biscuit Manufacturing Co. Ltd – vs- West End Distributors Ltd [1969] E. A 696, where it was held that:
“…a Preliminary Objection consists of a point of law which has been pleaded, or which 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 a contract giving rise to the suit to refer the dispute to arbitration.’’
24. The 1 st Respondent’s case is that the issue of jurisdiction arises from the pleadings filed by the Plaintiff before the trial court. The 1 st and 2 nd Respondents contend that the trial court had no jurisdiction to entertain the suit. They contend that the Environment and Land Court (Magistrate’s Court) at Bomet lacked jurisdiction ab initio to entertain and determine the suit, as the core dispute concerned recovery of a staff loan, being a purely contractual matter falling outside the scope of section 13(2) of the Environment and Land Court Act, 2011, and that the suit before the trial Court did not and does not involve any dispute relating to;
a) Title, ownership or possession of land
b) Use or occupation of land
c) Environmental planning, protection or management
d) Compulsory acquisition of land
e) Any other matter enumerated in Section 13(2) of the Environment and Land Court Act, 2011 together with Article 162(2) of the Constitution of Kenya, 2010.
25. The 1 st and 2 nd Respondents further contend that the proper forum for determination of a contractual loan recovery dispute is either the Civil Division of the Magistrate’s Court for ordinary Civil matters or the Commercial Court for commercial disputes and not the Environment and Land Court.
26. It was submitted further on behalf of the 1 st and 2 nd Respondents that the governing principle as set in the case of Owners of Motor Vessel “Lillian S” =VS= Caltex Oil (Kenya) Ltd. [1989] KLR 1 is that;
“Jurisdiction is everything. Without it, a Court has no power to take one more step….”
27. Counsel relied on Section 13(2) of the Environment and Land Court Act and Article 162(2)(b) of the Constitution of Kenya 2010. Counsel cited the case of Co-Operative Bank of Kenya Limited =VS= Patrick Kangethe Njuguna & 5 others [2017] KECA 79 (KLR) where it was held that the Environment and Land Court lacked jurisdiction to deal with contracts of mortgage, the collection of dues and rents which fall within the civil jurisdiction of the High Court.
28. Counsel submitted that the substance of the dispute was a debt recovery action. Counsel submitted further that the unregistered charge vested nothing in the Appellant's favour, that the loan was advanced to the 1 st Respondent on an unsecured basis – making it a pure contractual arrangement as no charge was ever perfected. That there was no informal charge in any legally meaningful sense.
29. Counsel submitted further that the characterization of the dispute as involving land fraud does not rescue the Appellant’s jurisdictional position. That the Appeal was incompetent and urged the Court to uphold the Preliminary Objection and set aside the proceedings of the trial Court and dismiss both the suit and the appeal.
30. On behalf of the Appellant, it was submitted that the cause of action in the Plaint related to the interest held by the Appellant in the suit property. That the cause of action involved land fraud. That the relief sought in the Plaint can only be granted by the Environment and Land Court and is within the jurisdiction of the Court. Counsel urged the Court to dismiss the Preliminary Objection.
31. As submitted by the 1 st and 2 nd Respondents, jurisdiction is everything, as held in the case of Owners of Motor Vessel “Lillian S” . From the cause of action disclosed and the relief sought in the Plaint, the core complaint was the 1 st and 2 nd Respondents’ fraudulent disposal of the suit land which, according to the Appellant, was charged vide an informal charge to secure a Staff Loan advanced to the 1 st Respondent. Whether the informal charge was perfected or not was to be a matter to be proved through production of evidence.
32. The prayer for the Outstanding Staff Loan was an alternative prayer and ancillary to the prayers for recovery of the land which was the substantive/predominant claim. Section 26 of the Environment and Land Court Act and section 9 of the Magistrate Courts Act give jurisdiction to the Magistrate Court jurisdiction to hear and determine environment and land cases. I find that the trial Court had jurisdiction to entertain the suit.
33. The Court finds in respect of the 1 st and 2 nd issues is that the preliminary objection is properly before the Court; the same lacks merit.
The next issue for determination is whether or not the trial court erred in dismissing the Application dated 16 th August, 2024.
34. The Appellant faults the trial Court for dismissing the Application. It is evident from the Defence that the 1 st Respondent admitted her indebtedness to the Appellant. She admitted the contents of paragraphs 1-6 and 10 of the plaint. It is in paragraph 10 of the plaint that the Appellant had pleaded that the Defendants had failed, refused and/or ignored to repay the loan facility within the set and agreed timelines and were currently in arrears to the tune of Kshs 8,649,167/=. The 1 st Respondent stated in paragraph 4 of her Defence that she admitted that there were outstanding loan repayments but denied willful failure to repay and attributed her inability to repay to unexpected financial difficulties after leaving employment.
35. Order 13 Rule 2 of the Civil Procedure Rules, pursuant to which the application had been brought, provides that admissions may be in pleadings or otherwise and that judgment may be entered without a full trial where the admission is sufficient. Order 13, Rule 1 stipulates that,
“Any party to a suit may give notice by his pleading, or otherwise in writing, that he admits the truth of the whole or part of the case of any other party.”
And Order 13, Rule 2 that
“Any party may at any stage of a suit, where admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the court may upon such application make such order, or give such judgment, as the court may think just.
36. In Choitram & another v Nazari (Civil Appeal 8 of 1982) [1984] KECA 116 (KLR) (20 January 1984) (Judgment), it was held that admissions are not confined to formal pleadings; they may also be found in correspondence, affidavits, draft agreements, or other admitted documents. The words "or otherwise" in the rule are broad enough to encompass these forms of admission. Judgment on admission remains discretionary, but where admissions are clear, unequivocal, and leave no real issue to be tried, the court may grant judgment without a full trial.
37. The 1 st Respondent having admitted indebtedness, the court ought to have proceeded to enter judgment on the basis of the admission and in favour of the Appellant. This would then terminate the quest for the substantive prayers in the plaint. I find that the trial court erred in dismissing the Application.
38. For the foregoing reasons, the court finds that the Appeal has merit and hereby allows it and makes the following orders
i. the ruling of the trial court dated 4 th February 2025 is set aside and substituted with an order allowing the application dated 16 th August 2024 in the terms that judgment is hereby entered on admission against the 1 st Defendant/Respondent for the sum of Kshs. 8,649,147/= together with interest thereon at court rates from the date hereof to the date of full payment.
ii. Costs of the Application are awarded to the applicant to be borne by the 1 st Respondent.
ii. Costs of the appeal herein are awarded to the appellant to be borne by the 1 st Respondent.
Orders accordingly.
Judgment delivered, dated and signed at Bomet and delivered virtually this 17 th Day of September, 2026.
E. ASATI,
JUDGE.
In the presence of
Zaddy Sang: Court Assistant.
Wanda for the appellant.
Keter for the 1 st and 2 nd Respondents.
No appearance for the 3 rd Respondent.
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