Bokole & 8 others v Kebuchi (Environment and Land Case E010 of 2024) [2025] KEELC 5816 (KLR)
The bottom line
#A Kenyan court refused to strike out a land ownership lawsuit over paperwork errors, giving the claimants seven days to fix the filing or lose the case.
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 Preliminary Objection dated 9th October, 2024 meets the laid-down threshold based on Law and Precedents
- 2.Whether the Notice of Preliminary Objection dated 9th October, 2024 is merited
- 3.Who bears the Costs of the Notice of Preliminary Objection dated 9th October, 2024
Key legal issues
#Whether the objection is a proper preliminary objection on a pure point of law
Yes - the objection raising non-compliance with Order 37 Rule 7(2) and jurisdiction is a pure point of law and must be dealt with in limine
The court applied the Mukisa Biscuits definition and related authorities, finding that the ground that the suit offends Order 37 Rule 7(2) requires no ascertainment of facts and raises a jurisdictional question which, once raised, must be addressed at the outset.
Whether the Originating Summons offends Order 37 Rule 7(2) of the Civil Procedure Rules fatally
No - non-compliance (verifying affidavit instead of supporting affidavit with certified title extract) is curable and the objection was disallowed conditionally
The court found that the plaintiffs attached a verifying affidavit rather than a supporting affidavit annexing a certified extract of title. However, applying Article 159(2)(d) of the Constitution and the Environment and Land Court Act, and authorities on substantive justice, it held the defect is curable through amendment and the material on record, since the defendant's own title is under challenge. The objection was therefore conditionally disallowed, with leave to file a properly constituted summons within seven days.
Costs of the preliminary objection
No orders as to costs, despite the general principle that costs follow the event
The court recited Section 27(1) of the Civil Procedure Act and authorities confirming costs follow the event, but in its discretion declined to award costs given the conditional outcome.
Legal principles established
#- A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained or where judicial discretion is sought
- Where a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership
- A suit should not be summarily dismissed unless it is so hopeless that it is beyond redemption and incurable by amendment
- Costs follow the event and the successful party is typically entitled to costs unless there are compelling reasons to decide otherwise
Court orders
#- 1.The Notice of Preliminary Objection by the Defendant dated 9th October, 2024 be and is hereby disallowed conditionally
- 2.The Plaintiffs are directed 'suo moto' to file and serve a properly constituted Originating Summons within the next seven (7) days of the ruling, failure to which the suit shall automatically stand struck out with costs of the suit and the Preliminary Objection awarded to the Defendant
- 3.Mention of the matter on 24th September, 2025 to ascertain compliance and progress
- 4.There shall be no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court Act (original jurisdiction over land disputes; suit under Section 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules, 2010)
Relief refused
#Striking out of the Originating Summons
The defect (use of a verifying affidavit instead of a supporting affidavit with a certified extract of title) is curable by amendment and Article 159(2)(d) of the Constitution favours determination on the merits; striking out is a last resort
Costs of the Preliminary Objection to the Defendant
The objection was disallowed and the court exercised its discretion not to award costs
Costs
There shall be no orders as to costs.
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.
That the Notice of Preliminary objection by the Defendant dated 9th October, 2024 be and is hereby disallowed conditionally.
That the Plaintiffs are hereby directed " suo moto' to file and serve a properly constituted Originating summons within the next seven (7) days of this ruling failure to which the suit shall automatically stand stuck out with costs of the suit and the Preliminary Objection dated 9th October, 2024 awarded to the Defendant.
That there shall be no orders as to costs.
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.
Striking out suits preliminarily is a draconian measure, which should be allowed only as last resort and when the suit is so hopeless and cannot be salvaged, even by an amendment.
When a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership…
Issues in the judgment
#Statutory citation inconsistency: the Environment and Land Court Act is cited both as 'Environment and Land Court Act, 2015 (2011)' and as 'Sections 3 and 13 of the Environment & Land Act, No. 19 of 2011'
Section 27(1) of the Civil Procedure Act is mislabelled as the 'Civil Procedure Rules Cap. 21'
The court refers to cases 'Kweyu Wambura and Watuko cases (supra)' but no such cases are cited earlier in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bokole & 8 others v Kebuchi (Environment and Land Case E010 of 2024) [2025] KEELC 5816 (KLR)", Case Analysis (2025). Originating Summons dated 4th September, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5816/eng@2025-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.