Kenya Builders & Concrete Company Limited v Mukabana (Suing as Administrator of the Estate of the Late Peter Keya Were) (Environment and Land Case Civil Suit 1001 of 2013) [2026] KEELC 794 (KLR)
The bottom line
#A Kenyan land court refused to strike out a company's property suit over paperwork gaps, ruling the objections were procedural technicalities the Constitution requires courts to overlook.
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 Notice of Preliminary Objection should be expunged for failure to comply with Order 9 Rule 7 of the Civil Procedure Rules
- 2.Whether the plaint dated 15th August 2013 is incurably defective and should be struck out
- 3.Whether the Defendant's preliminary objection is merited
Key legal issues
#Whether the Defendant's Notice of Preliminary Objection should be expunged for non-compliance with Order 9 Rule 7 (no Notice of Change of Advocates)
The objection was not upheld; the advocate was allowed to regularize his appointment on record
The Court associated itself with Mativo J's decision in John Gitonga Gachuhi, relying on the constitutional right to legal representation and Article 159(2)(d) which requires the Court not to unduly pay regard to procedural technicalities. Non-filing of a Notice of Change of Advocates was a curable irregularity, and the advocate was permitted to regularize his appointment.
Whether the plaint is incurably defective for want of a board resolution authorising the verifying affidavit under Order 4 Rule 1(4)
No; non-filing of the resolution does not invalidate the suit and striking out is not the appropriate remedy
Order 4 Rule 1(4) requires a corporation's verifying affidavit to be sworn by a duly authorised officer, but it does not provide that failure to do so renders the suit a nullity. Relying on Spire Bank Ltd and Kivulini Cottages, the Court held the provision was not intended as a technicality for striking out suits absent evidence of unauthorisation, and the Defendant's remedy was to seek particulars. The objection offended Article 159(2)(d).
Whether the Defendant's preliminary objection is merited
It is not merited and is disallowed
Having found that the objection to the advocate on record was a procedural technicality and that the alleged defect in the verifying affidavit was not fatal, the Court found no basis in law for striking out the suit. Both limbs of the objection failed and the Notice of Preliminary Objection was disallowed with costs in the cause.
Legal principles established
#- Failure by a corporation to file a resolution authorising the deponent of a verifying affidavit under Order 4 Rule 1(4) does not, of itself, invalidate the suit or render it a nullity; the remedy is to seek particulars
- Procedural technicalities, including non-compliance with notice requirements on change of advocates, should be disregarded in favour of substantive justice under Article 159(2)(d) of the Constitution
Court orders
#- 1.The Defendant's Notice of Preliminary Objection dated 29th September 2025 is found unmerited and disallowed
- 2.Costs in the cause
- 3.The Defendant's advocate is allowed to regularize his appointment (Notice of Change of Advocates) despite the objection under Order 9 Rule 7
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction over land (Environment and Land Court) in a claim over LR No. 7086; constitutional provisions invoked include Article 159(2)(d) of the Constitution
Relief refused
#Striking out or dismissal of the plaint for want of a board resolution authorising the verifying affidavit (Order 4 Rule 1(4))
The provision does not state that failure to comply renders the suit a nullity; the remedy was particulars, and the objection is a procedural technicality contrary to Article 159(2)(d)
Costs
Costs in the cause
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.
In the foregoing, I find the instant Notice of Preliminary Objection unmerited and will disallow it.
Costs in the cause.
In the circumstances, I decline to find that the suit as filed is fatally incurably, defective and bad in law and should hence be dismissed with costs.
even if the Counsel for the Defendant did not file a Notice of Change of Advocates as claimed, he can be allowed to regularize his appointment and will proceed to exercise my discretion and allow him to do so.
To my mind this is seeking to rely on a technicality which Courts are urged to disregard by dint of Article 159 (2) (d) of the Constitution.
Issues in the judgment
#The judgment inconsistently refers to 'Order 4 Rule 4' when the correct provision under discussion is Order 4 Rule 1(4)
The record of appearances appears inconsistent with the parties' roles: Makori and Onyango Oyieko are listed for 'Respondent/Defendant' and Onduso for 'Plaintifi/Respondent'
The judgment does not state its case number or title; it commences directly with a description of the plaint
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Builders & Concrete Company Limited v Mukabana (Suing as Administrator of the Estate of the Late Peter Keya Were) (Environment and Land Case Civil Suit 1001 of 2013) [2026] KEELC 794 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/794/eng@2026-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.