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ELCPartially AllowedCivil Appeal No E004 of 2025

Trustee, Independent Faith Baptist Churches of Kenya & another v New Member Home Academy & another (Civil Appeal E004 of 2025) [2026] KEELC 5316 (KLR)

Environment and Land Court of Kenya
30 June 2026
5,350 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kwale's Environment and Land Court partly allowed a church's appeal, ordering an investigation into a school's registration and awarding half the appeal costs.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kwale against two rulings of the Chief Magistrate's Court (ELC Case No 84 of 2019, Hon. L. T. Lewa, PM) delivered on 5th March 2025 and 2nd April 2025. The Appellants challenged, across fifteen grounds, the dismissal of their preliminary objection dated 7th May 2024 (which questioned the Respondents' locus standi, contravention of Section 9 of the Education Act, Cap. 211 and the Co-operative Societies Act, and the trial court's jurisdiction) and the upholding of the Respondents' preliminary objection dated 2nd April 2024, which struck out their application and supporting affidavit sworn by Samuel Mwangi Mburu under Order 19 Rule 3(1) of the Civil Procedure Rules on the ground that he was not a party or trustee. The Appellants also sought the alternative relief that the Director of Education, Kwale County be ordered to investigate the registration of New Mabriver Home Academy. The court, per L.L Naikuni J, framed three issues: tenability of the appeal, appropriate orders, and costs. Applying the Mukisa Biscuits threshold, it held the trial court was justified in dismissing the Appellants' preliminary objection because it required ascertainment of facts and was not a pure point of law. However, it held the Respondents' preliminary objection lacked merit: a letter dated 18th November 2011 showed Mr Mburu was a trustee authorised to conduct litigation, undisputed by anyone, and the capacity issue raised factual matters. The appeal therefore partly succeeded. The court ordered the Director of Education, Kwale County to investigate the registration of New Mabriver Home Academy and file a report within 90 days, set a mention for 27th October 2026, and awarded the Appellants half the costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal is tenable
  2. 2.The orders to be made in this appeal to meet the best ends of justice
  3. 3.Who bears the costs of the appeal

Key legal issues

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01

Whether the trial court properly dismissed the Appellants' preliminary objection dated 7th May, 2024

Holding

The dismissal was proper; the objection under Section 9(1) of the Education Act required ascertainment of facts (whether the institution was a primary school maintained and managed by a local authority) and hence was not a pure point of law

Reasoning

Applying the Mukisa Biscuits threshold, the court found that determining whether the 1st Respondent was a primary school managed by a local authority would require oral and documentary evidence, converting the objection from a question of law to one of fact. The court also agreed the Defendants failed to cite the specific provisions of the Co-operative Societies Act allegedly contravened.

p. 20
02

Whether the trial court properly allowed the Respondents' preliminary objection striking out the Appellants' application sworn by Samuel Mwangi Mburu

Holding

The trial court erred; Mr Mburu had capacity and authority as a trustee of the 1st Appellant, so the objection lacked merit

Reasoning

A letter dated 18th November 2011 signed by Rev Samson K Nzuki attached to the affidavit showed Mr Mburu was a trustee authorised to oversee litigation for the 1st Defendant. With no one disputing this authority, the court held he was a representative of the Appellants, and that the question of his capacity raised factual matters unsuitable for a preliminary objection.

p. 25
03

Who bears the costs of the appeal

Holding

The Appellants, having successfully argued the appeal in part, were entitled to half the costs

Reasoning

Relying on Section 27(1) of the Civil Procedure Act and the Supreme Court's decision in Rai & 3 others v Rai & 4 others, the court held costs follow the event but are discretionary. Since the appeal partly succeeded, half the costs were awarded to the Appellants.

p. 27

Legal principles established

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  • A preliminary objection must be a pure point of law, pleaded or arising by clear implication from the pleadings, and cannot be raised where facts must be ascertained or where the exercise of judicial discretion is sought
  • On a first appeal, the court must reconsider the evidence, evaluate it itself and draw its own conclusions
  • A deponent to an affidavit who is shown to be a duly authorised trustee with authority to handle proceedings for a party has the capacity to depone; an objection to such capacity on disputed facts is not a pure point of law

Court orders

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  1. 1.Judgment entered partially allowing the Memorandum of Appeal dated 14th April, 2025
  2. 2.The Director of Education Kwale County ordered and/or allowed to conduct investigations on the registration of New Mabriver Home Academy
  3. 3.The Director of Education, Kwale to file a report on the same within the next 90 days
  4. 4.Mention on 27th October, 2026 to ascertain compliance, progress and further directions leading to closure of the matter
  5. 5.Appellants awarded half of the costs of the appeal, to be borne by the Respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court at Kwale (Environment and Land)
Environment and Land Case No 84 of 2019
Jurisdiction invoked
First appeal from the trial court under Section 79B of the Civil Procedure Act, Cap. 21 and Order 42 Rules 11, 13 and 16 of the Civil Procedure Rules, 2010

Relief refused

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Upholding of the Appellants' preliminary objection dated 7th May, 2024

The objection was not raised on a pure point of law and would require ascertainment of facts

p. 21

Setting aside the ruling of the trial court dismissing the Appellants' preliminary objection dated 7th May, 2024

The trial court was justified in dismissing that preliminary objection

p. 26

Costs

The Appellants to be awarded half of the costs of the appeal, to be borne by the Respondents

Quotable passages

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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 Appellants to be awarded half of the costs of the appeal to be borne by the Respondents.
p. 29final orders - costs
The Director of Education Kwale County is hereby ordered and/or allowed to conduct investigations on the registration of New Mabriver Home Academy
p. 5final orders - direction for investigation
Therefore, I discern that the appeal thus partly succeeds.
p. 26outcome
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.
p. 18threshold for preliminary objections
The deponent to the affidavit had capacity and the authority to depone to the averments in the impugned affidavit.
p. 26capacity of deponent

Issues in the judgment

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minor

The judgment states the ruling on the Respondents' preliminary objection was delivered on 2nd April 2025 in some places and refers to 'the ruling delivered on 2nd April 2024' elsewhere; the appeal was lodged by memorandum dated 14th April 2025 against rulings dated 5th March 2025 and 2nd April 2025, indicating the 2024 reference is a typographical error

minor

The judgment inconsistently dates the Appellants' Notice of Motion as both 26th February 2024 and 29th February 2024; 29th February 2024 was a valid leap-year date but the parties dispute which is the real filing date, and the trial court struck out the application recorded as 26th February 2024

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Trustee, Independent Faith Baptist Churches of Kenya & another v New Member Home Academy & another (Civil Appeal E004 of 2025) [2026] KEELC 5316 (KLR)", Case Analysis (2026). Civil Appeal No E004 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5316/eng@2026-06-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.