Koter v Abdullahi (Sued as the legal administrator of the Estate of Bulle Abdullahi Gedi - Deceased) (Environment and Land Appeal E007 of 2025) [2026] KEELC 4240 (KLR)
The bottom line
#Kenya's Environment and Land Court in Garissa dismissed a preliminary objection, confirming that disputes about facts or judicial discretion cannot be decided as pure points of law.
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 grounds raised in the Notice of Preliminary Objection constitute a competent preliminary objection capable of disposing of the application dated 20 May 2025 in limine
Key legal issues
#Whether failure to deposit security for costs under Order 42 Rule 6(3) renders the appeal incompetent
No; security is a condition for stay of execution, not a precondition to instituting an appeal or extension application.
Order 42 Rule 6 regulates stay of execution pending appeal. Security is relevant to the grant of a stay, not a condition precedent to lodging an appeal or an extension-of-time application. Since the application before the Court includes a stay prayer, security is a matter to be considered in determining that prayer and does not deprive the Court of jurisdiction.
Whether failure to file and serve a Record of Appeal within Order 42 Rule 8 timelines renders the application incompetent
No; the ground rests on an incorrect legal premise and the factual dispute over filing falls outside a preliminary objection.
Order 42 Rule 8 does not prescribe any period for filing or serving a Record of Appeal; it merely restricts the exercise of powers to require security against the Government. Moreover, the record contains a Memorandum and Record of Appeal, and any dispute as to when they were filed or served would require ascertainment of facts, which is not the province of a preliminary objection.
Whether the length and explanation for the delay can be determined via preliminary objection
No; sufficiency of cause under section 79G requires assessment of facts and exercise of discretion.
Section 79G empowers the Court to admit an appeal out of time on good and sufficient cause. Determining that calls for consideration of the delay, explanation, conduct, prejudice and interests of justice. The Respondent's own 54-day argument demonstrates the evidential nature of the ground. Deciding it on a preliminary objection would require the Court to do what Mukisa Biscuit prohibits.
Whether objections to the Kadhi's Court proceedings (fraud, non-disclosure, jurisdiction, service) are pure points of law
No; all are contested matters of fact requiring evidence.
Allegations of fraud must be specifically pleaded and strictly proved. The sale of the suit property, disclosure, family consent, conflict of interest, and service by WhatsApp on a herdsman frequently outside network coverage are disputed factual matters. The challenge to the Kadhi's Court's jurisdiction also cannot be determined in the abstract without examining the pleadings and orders in that court.
Whether abuse of process and lack of arguability of the intended appeal can be determined in limine
No; both require factual proof or prima facie examination of the judgment and grounds.
Abuse of process here depends on first accepting contested assertions about fraud, non-disclosure, service and jurisdiction, which require proof. Whether the Memorandum of Appeal discloses an arguable appeal calls for prima facie examination of the judgment and grounds, and prospects of success are considerations for the extension-of-time discretion, not a preliminary point.
Legal principles established
#- A preliminary objection must raise a pure point of law; it cannot be raised where facts must be ascertained, evidence evaluated or judicial discretion exercised.
- The requirement for security under Order 42 Rule 6(3) is a condition relevant to stay of execution, not a condition precedent to the institution of an appeal.
- Whether sufficient cause exists for delay under section 79G is not a pure question of law but a matter for determination on the merits.
Court orders
#- 1.The Respondent's Notice of Preliminary Objection dated 25 November 2025 is hereby dismissed.
- 2.The Notice of Motion dated 20 May 2025 shall proceed to determination on its merits.
- 3.The costs of the Preliminary Objection shall abide the outcome of the Notice of Motion.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Garissa (CMELC)
- Garissa CMELC No. E005 of 2022
- Jurisdiction invoked
- Appellate jurisdiction under the Civil Procedure Act (section 79G) and Civil Procedure Rules, 2010 over an application for leave to appeal out of time
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.
A preliminary objection must raise a pure point of law arising from the pleadings which, if upheld, is capable of disposing of the matter.
The Supreme Court of Kenya, in Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 Others, Application No. 50 of 2014 [2015] eKLR, adopted the classic Mukisa Biscuit test with approval and emphasized that the character of an objection is determined by its substance, not by the label assigned to it.
It is not a condition precedent to the institution of an appeal, nor does failure to furnish security, without more, render an appeal or an application for extension of time incompetent.
i. The Respondent’s Notice of Preliminary Objection dated 25 November 2025 is hereby dismissed. ii. The Notice of Motion dated 20 May 2025 shall proceed to determination on its merits. iii. The costs of the Preliminary Objection shall abide the outcome of the Notice of Motion.
Issues in the judgment
#Paragraph numbering is duplicated/inconsistent (numbering restarts at 5 in the submissions section and ground 14 appears twice).
The ruling is authored by Owino J but records that Kibunja J gave the direction to canvass the objection by written submissions; Kibunja J is not listed in any coram.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Koter v Abdullahi (Sued as the legal administrator of the Estate of Bulle Abdullahi Gedi - Deceased) (Environment and Land Appeal E007 of 2025) [2026] KEELC 4240 (KLR)", Case Analysis (2026). Not stated on the face of the ruling (related to Garissa CMELC No. E005 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4240/eng@2026-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.