Kitano & another v Athman & Athman & 2 others (Civil Appeal E007 of 2023) [2025] KECA 1944 (KLR)
The bottom line
#The Court of Appeal confirmed that preliminary objections can only succeed on pure points of law, not on contested facts requiring evidence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge of the ELC erred in declining to dismiss the 1st and 2nd respondents' suit based on the appellants' preliminary objection
Key legal issues
#Whether the dispute could be disposed of by way of a preliminary objection
No. Whether Mashashi is alive and whether the succession proceedings were fraudulent are contested factual issues requiring evidence; the objection was improperly framed as a point of law
The Court applied the Mukisa Biscuit principles: a preliminary objection must be a pure point of law on the assumption that all pleaded facts are correct, with no fact needing ascertainment. Here, whether Mashashi is alive is contested, and claims that the succession proceedings were non-existent and fraudulent raise matters leaning towards criminality. The learned Judge correctly held that more evidence is required at the hearing; the Court discerned no misdirection warranting appellate interference.
Whether the Athmans were obliged to exhaust alternative remedies before the Land Registrar
No. The matters before the ELC are broader than the mere question of removal of the caution/restriction, so awaiting the Land Registrar's determination was not a bar
The appellants argued the Athmans should have awaited the Land Registrar's determination on the removal of the restriction/caution lodged against the title. The Court held that the questions raised in the originating summons - validity of the succession proceedings, the transmitted title, and the authority of the 2nd appellant - are evidently broader than the narrow question of removal of the caution, so the exhaustion argument did not sustain the objection.
Legal principles established
#- A preliminary objection must be on a pure point of law, argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised where any fact has to be ascertained or where judicial discretion is sought
Court orders
#- 1.The appeal is dismissed
- 2.Each party to meet its own costs of the appeal
- 3.The matter should proceed for hearing on merits to conclusion before the ELC
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Malindi
- ELC Suit No. 21 of 2021 (OS) (ruling on preliminary objection)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (decision delivered under Rule 34(4) of the Court of Appeal Rules)
Relief refused
#Dismissal of the respondents' suit in the ELC on the basis of the preliminary objection
The issues raised are contested factual and weighty matters that cannot be resolved on a pure point of law; more evidence is required at the hearing
Costs
Each party to meet its own costs of the appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
There can be no argument that a preliminary objection to court proceedings must be on a pure point of law.
The test to be applied in determining whether the appellants# Preliminary Objection met the threshold or not is what Sir Charles Newbold set out above in the Mukisa Case (supra).
More evidence is required to be adduced during the hearing to establish the allegations raised by both parties.
All in all, we discern no misdirection by the learned Judge in dismissing the preliminary objection that would justify our interference with her decision. The matter should proceed for hearing on merits to conclusion before the ELC. The appeal fails and is hereby dismissed. Each party to meet its own costs of the appeal.
Issues in the judgment
#The judgment refers to the appellants' memorandum of appeal containing twelve grounds, but does not set out or number the appeal file number of this Court; the appeal number of the present appeal is not stated on the face of the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitano & another v Athman & Athman & 2 others (Civil Appeal E007 of 2023) [2025] KECA 1944 (KLR)", Case Analysis (2025). Not stated in the judgment (appeal from ELC Suit No. 21 of 2021 (OS), Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1944/eng@2025-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.