Introduction
1. This ruling determines the Notice of Preliminary Objection dated 18th February 2026, drawn and filed by E.K. Njagi & Co. Advocates on behalf of the Defendants. The Preliminary Objection seeks to strike out the Plaintiff's suit with costs for having been filed out of time and without leave of the Court.
2. The Plaintiff initiated this suit praying for an order of specific performance directing the Defendants to transfer 20 acres of land to be subdivided from title number KAJIADO/NTASHART/589. The claim is anchored on an alleged land sale agreement executed on 3rd May 1988 between the late Amos Wahinya Muhia and the late Pannin Ole Lemeroi.
3. The jurisdictional and procedural foundation of the Defendants' objection stems from a ruling delivered on 8th July 2025 by Hon. Justice J.T. Lolwatan in High Court Kajiado Succession Cause No. E052 of 2023. In determining a protest regarding the estate's distribution, the High Court found that it lacked the mandate to determine the validity of the contested sale agreement and directed the Plaintiff to file the intended suit in the Environment and Land Court within a strict 21-days timeline.
4. The Defendants assert that the Plaintiff failed to file the present suit within the time prescribed by the court order of 8th July 2025 and neither sought nor obtained an enlargement of time.
5. The Defendants assert that the leave granted by the High Court to file the suit within 21 days lapsed by effluxion of time. The Plaintiff filed the suit out of time, acting in direct contravention of a subsisting court order. This Honourable Court lacks the jurisdiction to entertain a suit filed outside the judicially mandated timelines without a prior order for the enlargement of time. The suit is consequently liable to be struck out.
Directions
6. The preliminary objection was canvassed by way of written submissions, the submissions of which have been duly considered in the writing of this ruling.
Analysis and Determination
7. The issue arising for determination is whether the Notice of Preliminary Objection dated 18th February 2026 is merited.
8. The law governing preliminary objections is settled. In the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 where Law JA 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.”
Sir Charles Newbold P. further stated:
“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.”
9. Thus, where determination of a preliminary objection requires interrogation of facts, examination of evidence, interpretation of previous proceedings, or ascertainment of contested matters, such objection ceases to be a true preliminary objection.
10. The Defendants contend that the present suit was filed outside the twenty-one (21) days allegedly directed by the High Court in Kajiado Succession Cause No. E052 of 2023 and that the Plaintiff failed to obtain enlargement of time.
11. However, upon careful consideration, this Court finds that the objection does not rest on uncontested pure points of law.
12. First, the Court would be required to interrogate the proceedings and ruling in the succession cause to ascertain the exact nature, tenor, and legal effect of the directions allegedly issued by the High Court. The Court would equally need to determine whether the High Court order constituted strict conditional leave whose lapse automatically extinguished the Plaintiff’s right to sue, or whether the directions were merely administrative or facilitative in nature.
13. Second, the question whether failure to comply with the timeline rendered the suit incurably defective is itself not a straightforward pure point of law. It invites the Court to exercise judicial discretion and consider the applicability of Article 159(2)(d) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, as well as the overriding objective of the Court to determine disputes on their merits.
14. Further, the Defendants’ contention that this Court lacks jurisdiction is not self-evident from the pleadings alone. Jurisdiction of the Environment and Land Court is constitutionally conferred under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. The issue raised by the Defendants is not one of substantive jurisdiction but rather procedural propriety, which cannot be conflated with jurisdiction in the strict sense contemplated in the case Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd.
15. Importantly, the Court of Appeal in Oraro v Mbaja [2005] 1 KLR 141 cautioned against improperly elevating factual disputes into preliminary objections and stated:
“A preliminary objection correctly understood is now well 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 processes of evidence.”
16. The Court further observed:
“Any assertion which claims to be a preliminary objection, and 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…”
17. In the instant case, the objection requires this Court to go beyond the pleadings and examine extraneous material, including the succession proceedings, the wording and effect of the High Court ruling, the computation of time, and the consequences of any delay. These are not matters capable of summary determination as pure points of law.
18. The Court is persuaded that the matters raised by the Defendants are issues better suited for full ventilation through evidence and substantive hearing rather than summary disposal at a preliminary stage.
19. Consequently, the Notice of Preliminary Objection dated 18th February 2026 is hereby dismissed. Costs shall be in the cause.
It is so ordered.
Dated, Signed and Delivered Virtually this 21st Day of May, 2026.
M.D. MWANGI
JUDGE
In the virtual presence of:
Ms. Kerunja for the Defendant
N/A by the Plaintiff
Court Assistant: Alex
M.D. MWANGI
JUDGE