Drumvale Farmers Cooperative Society v Ngaiyai & 9 others (Land Case E373 of 2024) [2026] KEELC 217 (KLR) (27 January 2026) (Ruling)

Neutral citation: [2026] KEELC 217 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Land Case E373 of 2024

CG Mbogo, J

January 27, 2026

Between

Drumvale Farmers Cooperative Society

Plaintiff

and

Catherine Ngaiyai

1^st Defendant

Hussein T Dabaso

2^nd Defendant

Ahmed N.Omara

3^rd Defendant

Hussein Abdi Dakane

4^th Defendant

Chief Land Registrar

5^th Defendant

Cosmas Mukosi Kisilu

6^th Defendant

Julius Muthoka

7^th Defendant

Francis Gachanja Mwangi

8^th Defendant

Jefferson Muchiri Njuguna

9^th Defendant

Kyalo Munyao

10^th Defendant

Ruling

1.The plaintiff filed the plaint dated 11^th September, 2024 which was later amended on 10^th July, 2025 seeking inter alia the following reliefs against the defendants:-a.A declaration that the property number 8529/1; IR No. 20982/1 ceased to exist the same having been amalgamated and consolidated with property number LR. 7283/1 and LR. No. 3673 in exchange for individual title deed for the plaintiff.b.A declaration that the purported lease registered in favour of the 1^st to 4^th defendants on 6^th July 2022 is null and void.ab.A declaration that the purported lease registered in favour of the 6^th to 10^th defendants being LR. No. 8529/1; IR No. 252122 on the 13^th July 2022 is null and void.c.An order for demolition of any structure constructed by the defendants on the suit land and at the defendant’s costs.d.Costs of the suit.

2.Subsequent to the amendment of the plaint, the 6^th to 10^th defendants filed the preliminary objection dated 10^th July, 2025 challenging the suit on the following grounds:-i.That the suit is incurably defective, misconceived, bad in law and an abuse of the process of this Honourable Court.ii.That the issues to be canvassed in this suit are res sub judice, the same having directly and substantially been in issue between the same parties in ELC Case No. 42 of 2017 – Daniel Kyuli & 6999 Others -vs- Felix Muthemba, Joseph Njuguna and Nicodemus Kasuru Mutua Mbai, Daniel Mutua Mulinga, Jeremiah Mutisya Paul & 24 Others – Machakos Law Courts Environment and Land Court Division.iii.That the plaintiff is guilty of non-disclosure of pertinent material facts.

3.The preliminary objection was canvassed through written submissions. The 6^th to 10^th defendants’ filed their written submissions dated 12^th November, 2025. They submitted that the filing of the present suit is res sub judice due to the existence of Machakos ELC Case No. 42 of 2017 and ELC Case No. E033 of 2022 over the same subject matter. The 6^th to 10^th defendants further submitted that the filing of the suits in Milimani was clearly done maliciously by the plaintiffs with the intention of forum shopping for a court that would grant the orders sought. They urged the court to strike out the suit with costs to the 6^th to 10^th Defendants.

4.The plaintiff filed its written submissions dated 20^th November, 2025. The plaintiff submitted that the suit filed in the year 2014 which the 6^th to 10^th defendants are relying on was not competent and having come out of liquidation, it has never been properly enjoined in that suit. It was emphasized that the making of an application for joinder to a suit does not make the applicant a party thereto unless the application is allowed.

5.The plaintiff further submitted that the preliminary objection herein is not arguable on points of law only as the court would be called upon to peruse the files being referred to and interrogate the issues raised in each. The court was urged to dismiss the preliminary objection with costs to the plaintiff.

6.I have considered the preliminary objection and the written submissions filed. The sole issue for determination is whether the 6^th to 10^th defendants’ preliminary objection herein is merited.

7.The law on preliminary objections is settled. A preliminary objection must be on a pure point of law. Justice Law coined an apt description of what constitutes a preliminary objection in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 wherein the learned judge held as follows: -“In so far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point, may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

8.In the same case, Sir Charles Newbold, P. held as follows:-“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 demurrer. It raises a 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 nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.”

9.In Oraro v Mbaja [2005] eKLR, J.B. Ojwang J. (as he then was) described it as follows:-“I think the principle is abundantly clear. “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 process of evidence. An 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 which the court should allow to proceed.”

10.The 6^th to 10^th defendants have sought that the suit herein be struck out on the basis that the instant suit was filed during the existence of two cases namely Machakos ELC Case No. 42 of 2017 and Machakos ELCLC No. E033 of 2023. In their submissions, the 6^th to 10^th defendants stated that they had perused the pleadings filed in the aforementioned cases and discovered that the parties as well as the subject matter are the same.

11.The 6^th to 10^th defendants were of the view that the present suit is re sub judice the other ELC cases that were filed in Machakos which contravenes Section 6 of the Civil Procedure Act.

12.As pointed out in Oraro case (supra), a preliminary objection must not be clouded by factual details which are likely to be contested. The court has not had the benefit of perusing the pleadings filed in Machakos ELC Case No. 42 of 2017 and Machakos ELCLC No. E033 of 2023 in order to ascertain that the parties therein, the subject matter and the issues raised are identical to those in the present suit. The court cannot speculate on similarity of the pending suits since the opposing sides have strenuously contested the factual issues being raised in those respective cases.

13.The preliminary objection herein fails to meet the threshold set out in the decision of Mukisa Biscuit (supra). It does not raise a pure point of law.

14.In Jamii Bora Kenya Limited v Esther Wairimu Mbugua & another [2019] eKLR, the court reiterated as follows: -“A “preliminary objection” correctly understood, is now well defined 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. Any assertion, which claims to be a preliminary objection, 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 which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point…Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence….”

15.Accordingly, the preliminary objection herein has been improperly raised as it is founded on disputed facts regarding the coincidence in the identity of the parties and the suit property. It does not pass the test of a valid preliminary objection.

16.In the end, the preliminary objection dated 10^th July, 2025 is devoid of merit and must accordingly be dismissed with costs. The ruling in this matter also wholly applies to the proceedings as relates the preliminary objection in ELCLC No. E367 of 2024.It is so ordered.

DATED, SIGNED & DELIVERED VIRTUALLY THIS 27^TH DAY OF JANUARY, 2026.HON. MBOGO C.G.JUDGE27/01/2026.In the presence of:Ms. Vena Aron - Court assistantMr. Otieno Obwanda for the 6^th to 10^th Interested PartiesMr. Njonjo for the Plaintiff/Respondent

Drumvale Farmers Cooperative Society v Ngaiyai & 9 others (Land Case E373 of 2024) [2026] KEELC 217 (KLR) (27 January 2026) (Ruling)

Drumvale Farmers Cooperative Society v Ngaiyai & 9 others (Land Case E373 of 2024) [2026] KEELC 217 (KLR) (27 January 2026) (Ruling)

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