I. Introduction
1. The Honourable Court was tasked with the hearing and determining two [2] separate Notice of Motion applications dated 19 th January, 2026 by MASUDI ALI MBARUKU (Suing as an Administrator of the Estate of ALI MASUDI KAROYO alias ALI MASUDI MBARUKU – the Plaintiff/Applicant herein and the application dated 3 rd March, 2026 by JOSHUA KIPKOSKEI KORIR, the 7 th Defendant herein; a Preliminary Objection dated 3 rd March, 2026 and Grounds of Opposition by BENSON MOSINIK JUMА and JUMA OMAR NYERE, the 8 th and 9 th Defendants respectively.
2. Upon service of the applications, they were all opposed. The 8 th and 9 th Respondents opposed the application dated 19 th January 2026 by a notice of preliminary objection and grounds of opposition dated 3 rd March 2026.
II. The Notice of Motion application dated 19 th January, 2026 by the Plaintiff/Applicant
3. The application was filed pursuant to the provisions of Sections 1A (1) and (2) and 3A of the Civil Procedure Act, Cap. 21, Section 68 (1) of the Land Registration Act, no. 3 of 2012, Section 128 of the Land Act no. 6 of 2012, Order 51 Rule 10 (2) of the Civil Procedure Rules, 2010, Article 159 (2) of the Constitution of Kenya, 2010 and all other enabling provisions of the law.
4. The Applicants sought for the following orders:-
a) Spent.
b) That pending the hearing and determination of this suit, this Honourable Court be pleased to issue an order of Inhibition to protect and preserve the parcels of land Kwale/Galu Kinondo/5059 and Kwale/Galu Kinondo/5060 which are the sub - division of the parcel of land, Kwale/Galu Kinondo/616.
c) That this Honourable court be pleased to order the County Land-Registrar Kwale to register the order of Inhibition on the Plot no. Kwale/Galu Kinondo/5059 and Kwale/Galu Kinondo/5060 and or any other sub-plots arising from these two plots.
d) Cost of this application.
5. The application was premised upon grounds, testimonial facts and the averment made under 20 Paragraphs supporting affidavit sworn by MASUDI ALI MBARUKU the Plaintiff herein together with annextures marked as “MAM” annexed hereto. He averred as follows that:-
a) He was an adult of sound mind and the Plaintiff/Applicant herein and thus well versed with the facts and competent to swear this affidavit.
b) He was the beneficial owner and an administrator of the Estate of Ali Masudi Karoyo alias Ali Mbaruku as per copies of the Ad Litem Grant issued on 12 th November, 2025.
c) His father was the initial allottee and the first registered owner of the parcel of land Kwale/Galu Kinondo/616 (Hereinafter referred to as “The Suit Property”).
d) The gist of the Applicant's case was that the 6 th and the 7 th Defendants/Respondents procured the suit property unlawfully and through fraud. Further, the 8 th and 9 th Defendants/Applicants filed an adverse possession claim whereupon filing, they entered a consent dated 23 rd July, 2025 where they agreed to share the suit property where the 8 th and 9 th Defendants/Respondents would get five, while the 6 th and 7 th Respondents would get two, (2) acres of the suit property as per the annexed consent dated 23 rd July, 2025.
e) The consent dated 23 rd July, 2025, was adopted as an order of the court.
f) The land adverse possession claim against the suit property would not crystalize for the reason that suit property never existed as at the time the 8 th and 9 th Defendants/Respondents filed the adverse possession claim because the parcel, Kwale/Galu Kinondo/616 had been sub - divided into twelve ( 12 ) portions as at 24 th March, 2025 as shown on entry no. 12 of the green card certified on 14 th October, 2025. The adverse claim was filed on 30 th May, 2025.
g) The Applicant made an application to the County Land Registrar to confirm the status of the parcel of land before the adverse possession claim. Indeed, the Applicant was issued with a copy of the mutation form dated 26 th February, 2025, the mutation form confirms that the parcel of land Kwale/Galu Kinondo/616 was sub - divided into 12 portions.
h) Pursuant to the Order of the court dated 30 th July, 2025, the 6 th , 7 th , 8 th and 9 th Defendants excised the suit property into two plots, plot no. Kwale Galu Kinondo/5059 and Kwale Galu Kinondo/5060.
i) The current Mutation form shows that the parcel of land Kwale/Galu Kinondo/616 was excised into two portions, Kwale/Galu Kinondo 5059 and 5060.
j) It was averred that the 6 th , 7 th , 8 th and the 9 th Defendants/Respondent had obtained Land Control Board Letter of Consent and was using every hook and nook to dispose off the two ( 2 ) sub - divisions to a third party in toto disregard to the case that was filed by the Applicant.
k) In further disregard to the case in court, the 6 th ,7 th , 8 th and the 9 th Defendants/Respondent had secured a real estate Company who were the purchasers of the said suit property. This Real Estate Company are subdividing the two plots into several sub - plots for the purpose of further re - sale.
l) The process of sale of the suit property to the Real Estate Company commenced sometime in the year 2025.
m) He was apprehensive that the toto disregard of his interest in the suit property continue to be decimated by the 6 th , 7 th , 8 th and 9 th Defendants/Respondents who were aided by the 1 st and 2 nd Defendants/Respondent.
n) Initially before sub - dividing the suit property, the Applicant filed a restriction as against the suit property in order to protect it.
o) However, the County Land Registry - Kwale, failed to register it in order to assist the 6 th , 7 th , 8 th and 9 th Respondent in the sale of the suit property to the third parties.
p) The 1 st Respondent having received the application for restriction on the suit property, he issued a receipt dated 15 th September, 2025 on the same. The Applicant prayed for an order of Inhibition to be issued as against the Respondents to protect and preserve the suit property pending the hearing and determination of this suit.
q) The refusal to grant the order of Inhibition would render the Applicant's case nugatory to the advantage of the Respondents who are disposing of and or alienating/ transferring the suit two plots Kwale/Galu Kinondo/5059 and 5060 to the third party as shown in the Scheme Plan/ Sketch.
III. The responses by the 7 th Respondent.
6. While opposing the application, the 7 th Respondent filed a 70 Paragraphed document coined as Replying Affidavit dated 11 th June, 2026. I have opted to use the term coined for the reason that the “affidavit” as it is contains hearsay information and arguments which do not sum up to what an affidavit should entail and which is facts within a deponent’s personal knowledge. Be it as it may, it should be noted that the court perused the entire 132 pages of the said document and acquainted myself with the contents thereof.
7. In summary the deponent averred as follows that:-
a) The limited grant ad litem issued to the Applicant did not clothe him with “ the Locus Standi” to institute the suit before court.
b) The Applicant had failed to plead fraud to the required standard in law.
c) Further that the Applicant was not a party leading to the Consent Judgement and stated that the green card vailed before court indicating the late Masudi Mbaruku as the first allotted owner of the suit property was of questionable authenticity.
d) There was no necessity in having him cross examined over the contents of his pleadings and asked the court to disregard the said prayer.
IV. The Preliminary objection by the 8 th & 9 th Defendants/Respondents
8. The 8 th and 9 th Defendants/Respondents opposed Plaintiffs/Applicants application dated 19 th January, 2026 on the following grounds that:-
a) The Application was misconceived, bad in law and an abuse of court process.
b) The Honourable Court was “Functus Officio” therefore bound by the decision entered on the 24 th July, 2025.
c) The Application offended the mandatory provisions of Section 26 of the Land Registration Act, No. 3 of 2012.
d) The Applicants had no “Locus Standi” to sue as MASUDI KAROYO (deceased) and ALI MASUDI MBARUKU (deceased) were two ( 2 ) different persons.
e) The application offended the Principles of Setting Aside a Consent Judgment as the Consent could only be set aside and/or varied by the parties to the consent.
f) The Applicants Application lacked merit and should be dismissed with costs to the Respondents.
g) The suit offended the provision of Section 7 of the Civil Procedure Act Cap 21 – “ Doctrine of Res Judicata”.
V. Grounds of opposition
9. The 8 th and 9 th Defendants/Respondents further opposed Plaintiffs/Applicants application dated 19 th January, 2026 through filing of Grounds of Opposition raising the following grounds that:-
a) The Application was misconceived, bad in law and an abuse of court process.
b) The Honourable Court was “ Functus officio” therefore bound by the decision entered on the 24 th July,2025.
c) The Application offended the mandatory provisions of Section 26 of the Land Registration Act, No. 3 of 2012.
d) The Applicants had “ no locus standi” to sue as Masudi Karoyo (deceased) and Ali Masudi Mbaruku (deceased) are two different persons.
e) The application offended the Principles of setting aside a Consent Judgment as the consent could only be set aside and/or varied by the parties to the consent.
f) The Applicants Application lacked merit and should be dismissed with costs to the Respondents.
g) The suit offends the provision of Section 7 of the Civil Procedure Act Cap. 21 being a breach of the doctrine of Res judicata.
VI. The Notice of Motion application dated 3 rd March, 2026 by the 7 th Defendant.
10. The 7 th Defendant through the Law firm of Messrs. George Egunza & Associates Advocates filed the Notice of Motion application dated 3 rd March, 2026. The application was brought pursuant to the provisions of Order 24 Rules 1, 1A, 3A Civil Procedure Act, Cap. 21, Sections 4 & 13 of the Environment & Land Court Act, No. 19 of 2011, Articles of the Constitution of the Republic of Kenya Inherent Power and Jurisdiction of the Honourable Court and all other enabling provisions of the law.
11. The 7 th Defendant/Applicant sought for the following orders:
a) Spent.
b) That this application be heard in priority to the application dated 19 th January, 2026 and/or any further directions by the Honourable Court.
c) That the Honourable Court be pleased to strike out and proceed to dismiss the suit filed herein the same having been filed in contravention of mandatory provisions of Order 24.
d) That in tandem with prayer 3 hereinbefore stated the application dated the 19 th January, 2026 offends the mandatory provisions of Section 26 of the Land Registration Act Laws of Kenya consequently the Honourable Court ought to strike out the application and consequent suit.
e) That the Honourable Court be pleased to issue such further orders it deems just and expedient in their circumstances.
f) That the cost of this application and consequent dismissal of suit be borne by the Plaintiff/Respondent.
12. The application was based on the grounds, testimonial facts and averments made out under an 11 Paragraphed Supporting Affidavit sworn by JOSHUA KIPKOSKEI KORIR, together with the annexuture marked as “JKK” annexed hereto. He averred as follows that:-
a) He was an adult male of sound mind and disposition resident and working for gain. He was the 7 th Defendant well conversant with facts herein and hence competent to swear the affidavit.
b) The application dated the 19 th January, 2026, and more pertinently the suit herewith is otherwise vexatious and an abuse of the Honourable Court process, a candidate for striking out Suo motto.
c) The suit herein suffered the demise of “ the doctrine of Res Judicata” , the issue of ownership, proprietorship and any consequent deliberations and as admitted by the Plaintiff/Respondent were concisely concluded by the Honourable Court vide the Civil suit “ Environment & Land Case No. E002 (0.S) OF 2025”.
d) The Plaintiff/Respondent had proceeded to file a suit obtain orders before the Honourable Court through fraud, misrepresentation of facts, more pertinently the property Kwale/Galu Kinondo/616 and its consequent sub - divisions were not in any way connected to the Plaintiff/Respondent and/or the estate of Ali Masudi Karoyo [Deceased] and/or Ali Masudi Mbaruku (Deceased).
e) The 7 th Defendant/Applicant had material that depicts evidence that Ali Masudi Karoyo (Deceased) and Ali Masudi Mbaruku (Deceased) was two different persons with absolutely no nexus to all that parcel of land known as Kwale/Galu Kinondo/616 and its consequent sub-divisions De Novo the entire suit is a nullity from inception, thus dead-on arrival.
f) The 4 th Defendant/Respondent sued herewith as Nelson Njoroge Githima was in fact deceased having died on the 30 th November, 2024 by operation of Mandatory Provisions of Order 24 of the Civil Procedure Rules, 2010 the suit abated/non-starter, could only suffer consequences of being struck out ab initio.
g) The suit and all consequent applications/proceedings offends the mandatory provisions and import of Section 26 of the Land Registration Act, No. 3 of 2012, the Plaintiff /Respondent was NOT in any way the title holder had NOT presented before the Honourable Court any title documents to warrant a hearing and/or any orders before the Honourable Court.
h) Th Plaintiff/Respondents documents, pleadings and applications were premised on mere speculations, apprehension which the misrepresentation of facts devoid the Honourable Court of jurisdiction to make a step further.
i) The Plaintiff/Respondent and the 1 st , 2 nd , 3 rd , 4 th , 5 th , 6 th , 8 th & 9 th Defendants/Respondents would not suffer any prejudice in the event the Orders sought herein are granted as prayed.
j) The suit in its entirety was an invitation to the Honourable Court to sit on its own Appeal a position frowned upon by Constitutionalism, which invitation the Honourable Court ought to immediately decline.
k) From inception the suit filed herein was ab initio a dead on - arrival suit that the Honourable Court ought to lead to dismissal, the 4 th Defendant/Respondent was deceased, on the 30 th November, 2024, a fact clearly within the knowledge of the Plaintiff/Respondent.
l) The Civil Procedure Rules, 2010 in Order 24 preclude the filing of multiplicity of suits over the same cause of action especially in matters involving Land which was an abuse of the Honourable Court processes more aptly it was a ploy to re -open parallel litigation.
m) Even more shocking and pertinent to these proceeding the Plaintiff/Respondent is not in any way associated, related to the estate of Ali Masudi Karoyo (Deceased) and/or Ali Masudi Mbaruku (Deceased) which query was subject to Police investigations and inquiry.
n) The representation of deceased estate the proprietary or otherwise of the Plaintiff/Respondent was subject to Police enquiry, the said Plaintiff/Respondent was attempting a sanctification exercise through the Honourable Court.
o) Lastly, he averred that the requisite threshold for striking out premised on Res Judicata principles and the grounding in Order 24 of the Civil Procedure Rules, 2010 had been achieved.
VII. The Supplementary Affidavit by Plaintiffs
13. As already indicated above, in response to the averments in the application dated 3 rd March, 2026, the 8 th and 9 th filed Grounds of Opposition and the Notice of Preliminary Objection dated 3 rd March, 2026 the Plaintiff filed the Supplementary Affidavit dated 22 nd May, 2026 and stated as follows that:-
a) The Respondents never jointly own the parcel of land Kwale/GaluKinondo/616, therefore, it was an intentional and deliberate act of the Respondents to mislead the court into believing that the Respondent jointly owned the property, Kael/Galu Kinondo/616.
b) This was because according to the Certified copy of the Green Card dated 14 th October, 2025, the 5 th Defendant, [Ismail Omar Mbauro] owned the property on 2 nd March, 2007, the 6 th Defendant, [Antony Ngugi Mbage] was the owner of the property as at 6 th August, 2008, the 7 th Defendant, [Joshua Kipkoskei Korir owned the property on 2 nd February, 2009,
c) As such, it was ab initio unlawful to allege that the property was jointly owned by the 5 th , 6 th and 7 th Defendants.
d) Further that the Applicant had never litigated any matter in the court of law between him and the Respondents.
e) The consent dated 23 rd July, 2025 that was adopted by the court on 24 th July, 2025 was illegal and unenforceable for it was the vehicle used by the 5 th 7 th , 8 th and 9 th Respondents to advance their fraudulent activities.
f) Further, the Applicant invited the court to exercise its inherent jurisdiction in order to lift the veil of fraud and non-disclosure of the material facts which caused the court adopt the illegal/fraudulent consent as its order.
g) The court was asked to indulge the Plaintiff on the issue of the death of the 4 th Defendant. According to the Plaintiff, he was not aware of it.
h) On the issue of abatement of suit as per the provision of Section 24 of the civil procedure rules, it was stated that the Applicant was not a party to the suit filed by the Respondents, therefore, the principle on abatement of suit never bound him.
i) On the issue of multiplicity of suit, the Applicant filed this suit because his interest in the land was defeated by the impropriety of the Respondents who concealed the fact that the parcel of land Kwale/Galu Kinondo/616 herein the mother title was non-existence as at the time the Respondent filed ELC E002/2025 [OS] for the suit property had been sub-divided into twelve [12] portions as at February, 25 th 2025.
j) It was deposed that the twelve [12] sub - divisions were registered on 25 th February, 2025 according to the certified copy of the mutation form while the title deed mentioned above were issued by the land registrar to the 7 th Respondents on 24 th March, 2025, therefore, an adverse claim [if at all it existed] would only crystalize as against either of the sub - divisions mentioned in Paragraph 8 of this supplementary affidavit and not the mother parcel, Kwale/Galu Kinondo 616 which was non-existence at the time of filing the suit [ELC Е E002[OS] 2025.
k) In appreciating the non-existence of the parcel of land Kwale/Galu Kinondo/616 at the date of filing the originating summons dated 30 th May, 2025, the 1 st and the 2 nd Respondents through Order [4] of their consent dated 23 rd July, 2025, sought to merge the 12 sub-plots stated in Paragraph 8 of this supplementary affidavit to now re-create the parcel Kwale/Galu Kinondo/616.
l) The said twelve (12) sub - divisions were registered on 25 th February, 2025 while the title deed mentioned above were issued to the 7 th Respondents on 24 th March, 2025 by the 1st Respondent, therefore, an adverse claim (if at all it existed) would only crystalize as against either of the sub-divisions and not the mother parcel, Kwale/Galu Kinondo616 then.
m) It was stated that the Applicant was the son of Ali Masudi Mbaruku Karoyo alias Ali Masudi Mbaruku. The applicant also denied that he is under any investigations and stated that in the event that the same existed then it was a ploy by the Respondents to frustrate him.
n) The applicant in opposing the preliminary objection stated that the best/correct way of proving factual issues like res judicata or whether the deceased, Ali Masudi Mbaruku Karoyo alias Ali Masudi Mbaruku was the same person is through an application as espoused in the provision of Order 51 of the Civil Procedure Rule, 2010 where the Respondents could annex their evidence and not through the Notice of Preliminary Objection and the grounds of opposition.
o) Also that “ the doctrine of functus officio” was not a shield against fraud, particulars of fraud as follows amongst them, the suit property, Kwale/Galu Kinondo/616 never existed as it had been sub - divided into 12 sub plots, the Respondents failed to disclose to court that the suit property never existed, that the Respondent were untruth in that they failed to reveal that they did not live of the suit property.
p) The court was urged to dismiss the Preliminary Objection and the 7 th Respondent’s application dated 3 rd March, 2026.
VIII. Submissions
14. On 10 th March, 2026 in the presence of Counsels for the respective parties herein who had participated in the applications being the Plaintiff/Applicant, the 7 th , 8 th and 9 th Respondents, the court issued directions for the applications and the Preliminary Objection to be dispensed by way of written submissions.
15. Pursuant to that, the said parities complied accordingly. y as summarised here below.
A. The Written Submissions by the Plaintiffs/Applicants
16. The Law firm of Messrs. Wonanio & Kabiaro Advocates filed submissions on behalf of the Applicant in support of their application for inhibition and in opposition of the preliminary objection raised against the suit.
17. Mr. Kabiaro Advocate commenced the submissions by identifying the following issues for determination:-
a. Whether the preliminary objection and the ground of opposition hade merit.
b. Whether this Court was functus officio;
c. Whether the Applicant had the locus standi in this suit;
d. Whether this matter was barred through the doctrine of res judicata.
e. Whether the Preliminary notice and the grounds of opposition should be dismissed with costs.
18. On whether the preliminary objection and grounds of opposition was merited. The Learned Counsel submitted that the doctrine of functus officio could not stand in the face of fraud. The transfer of the land to its subsequent registered owners as at the time of filing suit was marred with fraud and the applicant’s case was meant to unravel the fraud.
19. On whether the Applicant had locus standi to institute this suit. The Learned Counsel maintained that the Applicant was a son to the late Ali Masudi Karoyo alias Ali Masudi Mbaruku and an administrator to the estate of the deceased as per the Grant Ad Litem taken out to enable him file the suit. The letters from the area chief and assistant chief and the affidavit sworn by his mother confirmed that he was indeed a son to the deceased. On the issue of Res Judicata. The Learned Counsel maintained one thing, that for the doctrine to the pleaded and proved there was the need to confirm from pleadings which was evidence, whether the issues alleged to have been heard and determined were indeed previously dealt with by the court. This simple issue already disqualified the legality of the preliminary objection.
20. The Learned Counsel maintained that the court was obliged to re - look at Judgement earlier rendered with regards to the suit property as it was obtained by fraud. On the death of the 4 th Respondent. It was submitted that the Applicant is a stranger to the 4 th Respondent, therefore could not be knowledgeable about his death. As such, the Applicant invited the court to invoke its inherent power in order to render substantive justice to the Applicant.
21. The court was asked to dismiss the preliminary objection and grounds of opposition.
B. The Written Submissions by the 8 th and 9 th Defendants
22. The Law firm of Messrs. Marende Necheza & Co Advocates filed written submissions on behalf of the 8 th and 9 th Defendants/Respondents. Mr. Lisanza Advocate submitted that it was all about the preliminary objection dated 3 rd March, 2026 and the application dated 19 th January, 2026.
23. It was submitted that when a Court had already pronounced itself on a matter, it is deemed to have performed all its duties in the case and it becomes functus officio. In the matter at hand, the consent judgment was delivered on 30 th July, 2025. That once the matter was heard and determined and a final decision rendered, this court became functus officio.
24. From the foregoing, it was clear that the Court had performed its duties as pertains the dispute between the Plaintiff and the Defendant and is therefore functus officio. The Learned Counsel averred that, it was a well settled principle that a consent order or decree had to be upheld unless it was violated by reason that would enable court to set aside an agreement such as fraud, mistake, misapprehension or contravention of court policy. This principle was on the premise of a Consent Judgement.
25. The Consent Judgement once endorsed by court became a Judgement of the court and it was binding on all the parties. Therefore, parties was estopped from asserting different position.
26. The Learned Counsel opined that a Consent Judgement should not be treated as an ordinary “Ex – Parte” Judgement. In this case a consent was entered into with the full knowledge and willingness of both parties reference was made to the holding in the case of:- “ Samuel Kangogo – Versus - Bhayani Nursery and Primary School |2020| eKLR” where the court held that a consent could only be set aside upon the applicant satisfying the court that it was entered into pursuant fraudulent misrepresentation by the other party or there was mutual mistake on the part of the parties or that the consent violates the law. According to the to the 8 th and 9 th Respondents there was no grounds laid by the Applicant to warrant setting aside the Consent Judgement and the consequential decree issued. The Applicant must accept that judicial decisions once made from a consent must be accepted as final and was not open to challenge and at some point, litigation must come to an end. The application should be dismissed with costs.
IX. Analysis and Determination
27. This court has keenly considered the pleadings in form of the Notice of Motion applications dated 19 th January, 2026 and 3 rd March, 2026 and the Preliminary Objection all raised by the parties herein, the written submissions, the cited myriad of authorities, the relevant provisions of the Constitution of Kenya, 2010 and the Statutes.
28. In order to arrive at an informed, reasonable and just decision, I have framed the following six (6) salient issues for determination:-
a) Whether the Notice of Preliminary Objection meets the threshold of an objection as founded under the Law and the Precedents.
b) Whether the Notice of Preliminary Objection as taken is well founded, valid and merited;
c) Has suit abated against the Defendants/Respondents herein
d) Is the suit Res Judicata? And more so is the court functus officio?
e) Whether or not a case has been made for grant of the inhibition orders sought
f) Who will bear the costs of both applications and the preliminary objection?
ISSUE No. a). Whether the Notice of Preliminary Objection meets the threshold of an objection as founded under the Law and the Precedents.
29. Under this Sub – heading, the Honourable Court shall be critically examining the meaning, nature and the scope of the concept of “Preliminary Objection”. According to the Black Law Dictionary a Preliminary Objection is defined as being:-
"In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”
30. The above legal preposition has been made in the now “ Classicus Locus” case of:- “Mukisa Biscuits Manufacturing Co. Limited – Versus - West End Distributors Limited (1969) E.A. 696” where the court held that:-
"The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurer 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 in the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop ”
31. Sir Charles Newbold, JA in the same case stated that: -
'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 had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.'
32. A “demurrer ” according to the Black’s Law Dictionary has its roots in French law ‘ demorer’ and Latin ‘ demorari ’ and is defined as follows:
“A pleading stating that although the facts alleged in a complaint may be true, they are insufficient for the Plaintiff to state a claim for relief and for the Defendant.”
33. I have further relied on the decision of “ Attorney General & Another – Versus - Andrew Mwaura Githinji & another [2016] eKLR : - as it explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection “ inter alia”: -
a. A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.
b. A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and
c. The improper raise of po
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1. The Honourable Court was tasked with the hearing and determining two [2] separate Notice of Motion applications dated 19 th January, 2026 by MASUDI ALI MBARUKU (Suing as an Administrator of the Estate of ALI MASUDI KAROYO alias ALI MASUDI MBARUKU – the Plaintiff/Applicant herein and the application dated 3 rd March, 2026 by JOSHUA KIPKOSKEI KORIR, the 7 th Defendant herein; a Preliminary Objection dated 3 rd March, 2026 and Grounds of Opposition by BENSON MOSINIK JUMА and JUMA OMAR NYERE, the 8 th and 9 th Defendants respectively.
2. Upon service of the applications, they were all opposed. The 8 th and 9 th Respondents opposed the application dated 19 th January 2026 by a notice of preliminary objection and grounds of opposition dated 3 rd March 2026.
II. The Notice of Motion application dated 19 th January, 2026 by the Plaintiff/Applicant
3. The application was filed pursuant to the provisions of Sections 1A (1) and (2) and 3A of the Civil Procedure Act, Cap. 21, Section 68 (1) of the Land Registration Act, no. 3 of 2012, Section 128 of the Land Act no. 6 of 2012, Order 51 Rule 10 (2) of the Civil Procedure Rules, 2010, Article 159 (2) of the Constitution of Kenya, 2010 and all other enabling provisions of the law.
4. The Applicants sought for the following orders:-
a) Spent.
b) That pending the hearing and determination of this suit, this Honourable Court be pleased to issue an order of Inhibition to protect and preserve the parcels of land Kwale/Galu Kinondo/5059 and Kwale/Galu Kinondo/5060 which are the sub - division of the parcel of land, Kwale/Galu Kinondo/616.
c) That this Honourable court be pleased to order the County Land-Registrar Kwale to register the order of Inhibition on the Plot no. Kwale/Galu Kinondo/5059 and Kwale/Galu Kinondo/5060 and or any other sub-plots arising from these two plots.
d) Cost of this application.
5. The application was premised upon grounds, testimonial facts and the averment made under 20 Paragraphs supporting affidavit sworn by MASUDI ALI MBARUKU the Plaintiff herein together with annextures marked as “MAM” annexed hereto. He averred as follows that:-
a) He was an adult of sound mind and the Plaintiff/Applicant herein and thus well versed with the facts and competent to swear this affidavit.
b) He was the beneficial owner and an administrator of the Estate of Ali Masudi Karoyo alias Ali Mbaruku as per copies of the Ad Litem Grant issued on 12 th November, 2025.
c) His father was the initial allottee and the first registered owner of the parcel of land Kwale/Galu Kinondo/616 (Hereinafter referred to as “The Suit Property”).
d) The gist of the Applicant's case was that the 6 th and the 7 th Defendants/Respondents procured the suit property unlawfully and through fraud. Further, the 8 th and 9 th Defendants/Applicants filed an adverse possession claim whereupon filing, they entered a consent dated 23 rd July, 2025 where they agreed to share the suit property where the 8 th and 9 th Defendants/Respondents would get five, while the 6 th and 7 th Respondents would get two, (2) acres of the suit property as per the annexed consent dated 23 rd July, 2025.
e) The consent dated 23 rd July, 2025, was adopted as an order of the court.
f) The land adverse possession claim against the suit property would not crystalize for the reason that suit property never existed as at the time the 8 th and 9 th Defendants/Respondents filed the adverse possession claim because the parcel, Kwale/Galu Kinondo/616 had been sub - divided into twelve ( 12 ) portions as at 24 th March, 2025 as shown on entry no. 12 of the green card certified on 14 th October, 2025. The adverse claim was filed on 30 th May, 2025.
g) The Applicant made an application to the County Land Registrar to confirm the status of the parcel of land before the adverse possession claim. Indeed, the Applicant was issued with a copy of the mutation form dated 26 th February, 2025, the mutation form confirms that the parcel of land Kwale/Galu Kinondo/616 was sub - divided into 12 portions.
h) Pursuant to the Order of the court dated 30 th July, 2025, the 6 th , 7 th , 8 th and 9 th Defendants excised the suit property into two plots, plot no. Kwale Galu Kinondo/5059 and Kwale Galu Kinondo/5060.
i) The current Mutation form shows that the parcel of land Kwale/Galu Kinondo/616 was excised into two portions, Kwale/Galu Kinondo 5059 and 5060.
j) It was averred that the 6 th , 7 th , 8 th and the 9 th Defendants/Respondent had obtained Land Control Board Letter of Consent and was using every hook and nook to dispose off the two ( 2 ) sub - divisions to a third party in toto disregard to the case that was filed by the Applicant.
k) In further disregard to the case in court, the 6 th ,7 th , 8 th and the 9 th Defendants/Respondent had secured a real estate Company who were the purchasers of the said suit property. This Real Estate Company are subdividing the two plots into several sub - plots for the purpose of further re - sale.
l) The process of sale of the suit property to the Real Estate Company commenced sometime in the year 2025.
m) He was apprehensive that the toto disregard of his interest in the suit property continue to be decimated by the 6 th , 7 th , 8 th and 9 th Defendants/Respondents who were aided by the 1 st and 2 nd Defendants/Respondent.
n) Initially before sub - dividing the suit property, the Applicant filed a restriction as against the suit property in order to protect it.
o) However, the County Land Registry - Kwale, failed to register it in order to assist the 6 th , 7 th , 8 th and 9 th Respondent in the sale of the suit property to the third parties.
p) The 1 st Respondent having received the application for restriction on the suit property, he issued a receipt dated 15 th September, 2025 on the same. The Applicant prayed for an order of Inhibition to be issued as against the Respondents to protect and preserve the suit property pending the hearing and determination of this suit.
q) The refusal to grant the order of Inhibition would render the Applicant's case nugatory to the advantage of the Respondents who are disposing of and or alienating/ transferring the suit two plots Kwale/Galu Kinondo/5059 and 5060 to the third party as shown in the Scheme Plan/ Sketch.
III. The responses by the 7 th Respondent.
6. While opposing the application, the 7 th Respondent filed a 70 Paragraphed document coined as Replying Affidavit dated 11 th June, 2026. I have opted to use the term coined for the reason that the “affidavit” as it is contains hearsay information and arguments which do not sum up to what an affidavit should entail and which is facts within a deponent’s personal knowledge. Be it as it may, it should be noted that the court perused the entire 132 pages of the said document and acquainted myself with the contents thereof.
7. In summary the deponent averred as follows that:-
a) The limited grant ad litem issued to the Applicant did not clothe him with “ the Locus Standi” to institute the suit before court.
b) The Applicant had failed to plead fraud to the required standard in law.
c) Further that the Applicant was not a party leading to the Consent Judgement and stated that the green card vailed before court indicating the late Masudi Mbaruku as the first allotted owner of the suit property was of questionable authenticity.
d) There was no necessity in having him cross examined over the contents of his pleadings and asked the court to disregard the said prayer.
IV. The Preliminary objection by the 8 th & 9 th Defendants/Respondents
8. The 8 th and 9 th Defendants/Respondents opposed Plaintiffs/Applicants application dated 19 th January, 2026 on the following grounds that:-
a) The Application was misconceived, bad in law and an abuse of court process.
b) The Honourable Court was “Functus Officio” therefore bound by the decision entered on the 24 th July, 2025.
c) The Application offended the mandatory provisions of Section 26 of the Land Registration Act, No. 3 of 2012.
d) The Applicants had no “Locus Standi” to sue as MASUDI KAROYO (deceased) and ALI MASUDI MBARUKU (deceased) were two ( 2 ) different persons.
e) The application offended the Principles of Setting Aside a Consent Judgment as the Consent could only be set aside and/or varied by the parties to the consent.
f) The Applicants Application lacked merit and should be dismissed with costs to the Respondents.
g) The suit offended the provision of Section 7 of the Civil Procedure Act Cap 21 – “ Doctrine of Res Judicata”.
V. Grounds of opposition
9. The 8 th and 9 th Defendants/Respondents further opposed Plaintiffs/Applicants application dated 19 th January, 2026 through filing of Grounds of Opposition raising the following grounds that:-
a) The Application was misconceived, bad in law and an abuse of court process.
b) The Honourable Court was “ Functus officio” therefore bound by the decision entered on the 24 th July,2025.
c) The Application offended the mandatory provisions of Section 26 of the Land Registration Act, No. 3 of 2012.
d) The Applicants had “ no locus standi” to sue as Masudi Karoyo (deceased) and Ali Masudi Mbaruku (deceased) are two different persons.
e) The application offended the Principles of setting aside a Consent Judgment as the consent could only be set aside and/or varied by the parties to the consent.
f) The Applicants Application lacked merit and should be dismissed with costs to the Respondents.
g) The suit offends the provision of Section 7 of the Civil Procedure Act Cap. 21 being a breach of the doctrine of Res judicata.
VI. The Notice of Motion application dated 3 rd March, 2026 by the 7 th Defendant.
10. The 7 th Defendant through the Law firm of Messrs. George Egunza & Associates Advocates filed the Notice of Motion application dated 3 rd March, 2026. The application was brought pursuant to the provisions of Order 24 Rules 1, 1A, 3A Civil Procedure Act, Cap. 21, Sections 4 & 13 of the Environment & Land Court Act, No. 19 of 2011, Articles of the Constitution of the Republic of Kenya Inherent Power and Jurisdiction of the Honourable Court and all other enabling provisions of the law.
11. The 7 th Defendant/Applicant sought for the following orders:
a) Spent.
b) That this application be heard in priority to the application dated 19 th January, 2026 and/or any further directions by the Honourable Court.
c) That the Honourable Court be pleased to strike out and proceed to dismiss the suit filed herein the same having been filed in contravention of mandatory provisions of Order 24.
d) That in tandem with prayer 3 hereinbefore stated the application dated the 19 th January, 2026 offends the mandatory provisions of Section 26 of the Land Registration Act Laws of Kenya consequently the Honourable Court ought to strike out the application and consequent suit.
e) That the Honourable Court be pleased to issue such further orders it deems just and expedient in their circumstances.
f) That the cost of this application and consequent dismissal of suit be borne by the Plaintiff/Respondent.
12. The application was based on the grounds, testimonial facts and averments made out under an 11 Paragraphed Supporting Affidavit sworn by JOSHUA KIPKOSKEI KORIR, together with the annexuture marked as “JKK” annexed hereto. He averred as follows that:-
a) He was an adult male of sound mind and disposition resident and working for gain. He was the 7 th Defendant well conversant with facts herein and hence competent to swear the affidavit.
b) The application dated the 19 th January, 2026, and more pertinently the suit herewith is otherwise vexatious and an abuse of the Honourable Court process, a candidate for striking out Suo motto.
c) The suit herein suffered the demise of “ the doctrine of Res Judicata” , the issue of ownership, proprietorship and any consequent deliberations and as admitted by the Plaintiff/Respondent were concisely concluded by the Honourable Court vide the Civil suit “ Environment & Land Case No. E002 (0.S) OF 2025”.
d) The Plaintiff/Respondent had proceeded to file a suit obtain orders before the Honourable Court through fraud, misrepresentation of facts, more pertinently the property Kwale/Galu Kinondo/616 and its consequent sub - divisions were not in any way connected to the Plaintiff/Respondent and/or the estate of Ali Masudi Karoyo [Deceased] and/or Ali Masudi Mbaruku (Deceased).
e) The 7 th Defendant/Applicant had material that depicts evidence that Ali Masudi Karoyo (Deceased) and Ali Masudi Mbaruku (Deceased) was two different persons with absolutely no nexus to all that parcel of land known as Kwale/Galu Kinondo/616 and its consequent sub-divisions De Novo the entire suit is a nullity from inception, thus dead-on arrival.
f) The 4 th Defendant/Respondent sued herewith as Nelson Njoroge Githima was in fact deceased having died on the 30 th November, 2024 by operation of Mandatory Provisions of Order 24 of the Civil Procedure Rules, 2010 the suit abated/non-starter, could only suffer consequences of being struck out ab initio.
g) The suit and all consequent applications/proceedings offends the mandatory provisions and import of Section 26 of the Land Registration Act, No. 3 of 2012, the Plaintiff /Respondent was NOT in any way the title holder had NOT presented before the Honourable Court any title documents to warrant a hearing and/or any orders before the Honourable Court.
h) Th Plaintiff/Respondents documents, pleadings and applications were premised on mere speculations, apprehension which the misrepresentation of facts devoid the Honourable Court of jurisdiction to make a step further.
i) The Plaintiff/Respondent and the 1 st , 2 nd , 3 rd , 4 th , 5 th , 6 th , 8 th & 9 th Defendants/Respondents would not suffer any prejudice in the event the Orders sought herein are granted as prayed.
j) The suit in its entirety was an invitation to the Honourable Court to sit on its own Appeal a position frowned upon by Constitutionalism, which invitation the Honourable Court ought to immediately decline.
k) From inception the suit filed herein was ab initio a dead on - arrival suit that the Honourable Court ought to lead to dismissal, the 4 th Defendant/Respondent was deceased, on the 30 th November, 2024, a fact clearly within the knowledge of the Plaintiff/Respondent.
l) The Civil Procedure Rules, 2010 in Order 24 preclude the filing of multiplicity of suits over the same cause of action especially in matters involving Land which was an abuse of the Honourable Court processes more aptly it was a ploy to re -open parallel litigation.
m) Even more shocking and pertinent to these proceeding the Plaintiff/Respondent is not in any way associated, related to the estate of Ali Masudi Karoyo (Deceased) and/or Ali Masudi Mbaruku (Deceased) which query was subject to Police investigations and inquiry.
n) The representation of deceased estate the proprietary or otherwise of the Plaintiff/Respondent was subject to Police enquiry, the said Plaintiff/Respondent was attempting a sanctification exercise through the Honourable Court.
o) Lastly, he averred that the requisite threshold for striking out premised on Res Judicata principles and the grounding in Order 24 of the Civil Procedure Rules, 2010 had been achieved.
VII. The Supplementary Affidavit by Plaintiffs
13. As already indicated above, in response to the averments in the application dated 3 rd March, 2026, the 8 th and 9 th filed Grounds of Opposition and the Notice of Preliminary Objection dated 3 rd March, 2026 the Plaintiff filed the Supplementary Affidavit dated 22 nd May, 2026 and stated as follows that:-
a) The Respondents never jointly own the parcel of land Kwale/GaluKinondo/616, therefore, it was an intentional and deliberate act of the Respondents to mislead the court into believing that the Respondent jointly owned the property, Kael/Galu Kinondo/616.
b) This was because according to the Certified copy of the Green Card dated 14 th October, 2025, the 5 th Defendant, [Ismail Omar Mbauro] owned the property on 2 nd March, 2007, the 6 th Defendant, [Antony Ngugi Mbage] was the owner of the property as at 6 th August, 2008, the 7 th Defendant, [Joshua Kipkoskei Korir owned the property on 2 nd February, 2009,
c) As such, it was ab initio unlawful to allege that the property was jointly owned by the 5 th , 6 th and 7 th Defendants.
d) Further that the Applicant had never litigated any matter in the court of law between him and the Respondents.
e) The consent dated 23 rd July, 2025 that was adopted by the court on 24 th July, 2025 was illegal and unenforceable for it was the vehicle used by the 5 th 7 th , 8 th and 9 th Respondents to advance their fraudulent activities.
f) Further, the Applicant invited the court to exercise its inherent jurisdiction in order to lift the veil of fraud and non-disclosure of the material facts which caused the court adopt the illegal/fraudulent consent as its order.
g) The court was asked to indulge the Plaintiff on the issue of the death of the 4 th Defendant. According to the Plaintiff, he was not aware of it.
h) On the issue of abatement of suit as per the provision of Section 24 of the civil procedure rules, it was stated that the Applicant was not a party to the suit filed by the Respondents, therefore, the principle on abatement of suit never bound him.
i) On the issue of multiplicity of suit, the Applicant filed this suit because his interest in the land was defeated by the impropriety of the Respondents who concealed the fact that the parcel of land Kwale/Galu Kinondo/616 herein the mother title was non-existence as at the time the Respondent filed ELC E002/2025 [OS] for the suit property had been sub-divided into twelve [12] portions as at February, 25 th 2025.
j) It was deposed that the twelve [12] sub - divisions were registered on 25 th February, 2025 according to the certified copy of the mutation form while the title deed mentioned above were issued by the land registrar to the 7 th Respondents on 24 th March, 2025, therefore, an adverse claim [if at all it existed] would only crystalize as against either of the sub - divisions mentioned in Paragraph 8 of this supplementary affidavit and not the mother parcel, Kwale/Galu Kinondo 616 which was non-existence at the time of filing the suit [ELC Е E002[OS] 2025.
k) In appreciating the non-existence of the parcel of land Kwale/Galu Kinondo/616 at the date of filing the originating summons dated 30 th May, 2025, the 1 st and the 2 nd Respondents through Order [4] of their consent dated 23 rd July, 2025, sought to merge the 12 sub-plots stated in Paragraph 8 of this supplementary affidavit to now re-create the parcel Kwale/Galu Kinondo/616.
l) The said twelve (12) sub - divisions were registered on 25 th February, 2025 while the title deed mentioned above were issued to the 7 th Respondents on 24 th March, 2025 by the 1st Respondent, therefore, an adverse claim (if at all it existed) would only crystalize as against either of the sub-divisions and not the mother parcel, Kwale/Galu Kinondo616 then.
m) It was stated that the Applicant was the son of Ali Masudi Mbaruku Karoyo alias Ali Masudi Mbaruku. The applicant also denied that he is under any investigations and stated that in the event that the same existed then it was a ploy by the Respondents to frustrate him.
n) The applicant in opposing the preliminary objection stated that the best/correct way of proving factual issues like res judicata or whether the deceased, Ali Masudi Mbaruku Karoyo alias Ali Masudi Mbaruku was the same person is through an application as espoused in the provision of Order 51 of the Civil Procedure Rule, 2010 where the Respondents could annex their evidence and not through the Notice of Preliminary Objection and the grounds of opposition.
o) Also that “ the doctrine of functus officio” was not a shield against fraud, particulars of fraud as follows amongst them, the suit property, Kwale/Galu Kinondo/616 never existed as it had been sub - divided into 12 sub plots, the Respondents failed to disclose to court that the suit property never existed, that the Respondent were untruth in that they failed to reveal that they did not live of the suit property.
p) The court was urged to dismiss the Preliminary Objection and the 7 th Respondent’s application dated 3 rd March, 2026.
VIII. Submissions
14. On 10 th March, 2026 in the presence of Counsels for the respective parties herein who had participated in the applications being the Plaintiff/Applicant, the 7 th , 8 th and 9 th Respondents, the court issued directions for the applications and the Preliminary Objection to be dispensed by way of written submissions.
15. Pursuant to that, the said parities complied accordingly. y as summarised here below.
A. The Written Submissions by the Plaintiffs/Applicants
16. The Law firm of Messrs. Wonanio & Kabiaro Advocates filed submissions on behalf of the Applicant in support of their application for inhibition and in opposition of the preliminary objection raised against the suit.
17. Mr. Kabiaro Advocate commenced the submissions by identifying the following issues for determination:-
a. Whether the preliminary objection and the ground of opposition hade merit.
b. Whether this Court was functus officio;
c. Whether the Applicant had the locus standi in this suit;
d. Whether this matter was barred through the doctrine of res judicata.
e. Whether the Preliminary notice and the grounds of opposition should be dismissed with costs.
18. On whether the preliminary objection and grounds of opposition was merited. The Learned Counsel submitted that the doctrine of functus officio could not stand in the face of fraud. The transfer of the land to its subsequent registered owners as at the time of filing suit was marred with fraud and the applicant’s case was meant to unravel the fraud.
19. On whether the Applicant had locus standi to institute this suit. The Learned Counsel maintained that the Applicant was a son to the late Ali Masudi Karoyo alias Ali Masudi Mbaruku and an administrator to the estate of the deceased as per the Grant Ad Litem taken out to enable him file the suit. The letters from the area chief and assistant chief and the affidavit sworn by his mother confirmed that he was indeed a son to the deceased. On the issue of Res Judicata. The Learned Counsel maintained one thing, that for the doctrine to the pleaded and proved there was the need to confirm from pleadings which was evidence, whether the issues alleged to have been heard and determined were indeed previously dealt with by the court. This simple issue already disqualified the legality of the preliminary objection.
20. The Learned Counsel maintained that the court was obliged to re - look at Judgement earlier rendered with regards to the suit property as it was obtained by fraud. On the death of the 4 th Respondent. It was submitted that the Applicant is a stranger to the 4 th Respondent, therefore could not be knowledgeable about his death. As such, the Applicant invited the court to invoke its inherent power in order to render substantive justice to the Applicant.
21. The court was asked to dismiss the preliminary objection and grounds of opposition.
B. The Written Submissions by the 8 th and 9 th Defendants
22. The Law firm of Messrs. Marende Necheza & Co Advocates filed written submissions on behalf of the 8 th and 9 th Defendants/Respondents. Mr. Lisanza Advocate submitted that it was all about the preliminary objection dated 3 rd March, 2026 and the application dated 19 th January, 2026.
23. It was submitted that when a Court had already pronounced itself on a matter, it is deemed to have performed all its duties in the case and it becomes functus officio. In the matter at hand, the consent judgment was delivered on 30 th July, 2025. That once the matter was heard and determined and a final decision rendered, this court became functus officio.
24. From the foregoing, it was clear that the Court had performed its duties as pertains the dispute between the Plaintiff and the Defendant and is therefore functus officio. The Learned Counsel averred that, it was a well settled principle that a consent order or decree had to be upheld unless it was violated by reason that would enable court to set aside an agreement such as fraud, mistake, misapprehension or contravention of court policy. This principle was on the premise of a Consent Judgement.
25. The Consent Judgement once endorsed by court became a Judgement of the court and it was binding on all the parties. Therefore, parties was estopped from asserting different position.
26. The Learned Counsel opined that a Consent Judgement should not be treated as an ordinary “Ex – Parte” Judgement. In this case a consent was entered into with the full knowledge and willingness of both parties reference was made to the holding in the case of:- “ Samuel Kangogo – Versus - Bhayani Nursery and Primary School |2020| eKLR” where the court held that a consent could only be set aside upon the applicant satisfying the court that it was entered into pursuant fraudulent misrepresentation by the other party or there was mutual mistake on the part of the parties or that the consent violates the law. According to the to the 8 th and 9 th Respondents there was no grounds laid by the Applicant to warrant setting aside the Consent Judgement and the consequential decree issued. The Applicant must accept that judicial decisions once made from a consent must be accepted as final and was not open to challenge and at some point, litigation must come to an end. The application should be dismissed with costs.
IX. Analysis and Determination
27. This court has keenly considered the pleadings in form of the Notice of Motion applications dated 19 th January, 2026 and 3 rd March, 2026 and the Preliminary Objection all raised by the parties herein, the written submissions, the cited myriad of authorities, the relevant provisions of the Constitution of Kenya, 2010 and the Statutes.
28. In order to arrive at an informed, reasonable and just decision, I have framed the following six (6) salient issues for determination:-
a) Whether the Notice of Preliminary Objection meets the threshold of an objection as founded under the Law and the Precedents.
b) Whether the Notice of Preliminary Objection as taken is well founded, valid and merited;
c) Has suit abated against the Defendants/Respondents herein
d) Is the suit Res Judicata? And more so is the court functus officio?
e) Whether or not a case has been made for grant of the inhibition orders sought
f) Who will bear the costs of both applications and the preliminary objection?
ISSUE No. a). Whether the Notice of Preliminary Objection meets the threshold of an objection as founded under the Law and the Precedents.
29. Under this Sub – heading, the Honourable Court shall be critically examining the meaning, nature and the scope of the concept of “Preliminary Objection”. According to the Black Law Dictionary a Preliminary Objection is defined as being:-
"In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”
30. The above legal preposition has been made in the now “ Classicus Locus” case of:- “Mukisa Biscuits Manufacturing Co. Limited – Versus - West End Distributors Limited (1969) E.A. 696” where the court held that:-
"The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurer 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 in the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop ”
31. Sir Charles Newbold, JA in the same case stated that: -
'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 had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.'
32. A “demurrer ” according to the Black’s Law Dictionary has its roots in French law ‘ demorer’ and Latin ‘ demorari ’ and is defined as follows:
“A pleading stating that although the facts alleged in a complaint may be true, they are insufficient for the Plaintiff to state a claim for relief and for the Defendant.”
33. I have further relied on the decision of “ Attorney General & Another – Versus - Andrew Mwaura Githinji & another [2016] eKLR : - as it explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection “ inter alia”: -
a. A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.
b. A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and
c. The improper raise of po
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