Trustee, Independent Faith Baptist Churches of Kenya & another v New Member Home Academy & another (Civil Appeal E004 of 2025) [2026] KEELC 5316 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal is tenable
- 2.The orders to be made in this appeal to meet the best ends of justice
- 3.Who bears the costs of the appeal
Key legal issues
#Whether the trial court properly dismissed the Appellants' preliminary objection dated 7th May, 2024
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
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.
Whether the trial court properly allowed the Respondents' preliminary objection striking out the Appellants' application sworn by Samuel Mwangi Mburu
The trial court erred; Mr Mburu had capacity and authority as a trustee of the 1st Appellant, so the objection lacked merit
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.
Who bears the costs of the appeal
The Appellants, having successfully argued the appeal in part, were entitled to half the costs
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.
Legal principles established
#- 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
#- 1.Judgment entered partially allowing the Memorandum of Appeal dated 14th April, 2025
- 2.The Director of Education Kwale County ordered and/or allowed to conduct investigations on the registration of New Mabriver Home Academy
- 3.The Director of Education, Kwale to file a report on the same within the next 90 days
- 4.Mention on 27th October, 2026 to ascertain compliance, progress and further directions leading to closure of the matter
- 5.Appellants awarded half of the costs of the appeal, to be borne by the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
Costs
The Appellants to be awarded half of the costs of the appeal, to be borne by the Respondents
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 Appellants to be awarded half of the costs of the appeal to be borne by the Respondents.
The Director of Education Kwale County is hereby ordered and/or allowed to conduct investigations on the registration of New Mabriver Home Academy
Therefore, I discern that the appeal thus partly succeeds.
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.
The deponent to the affidavit had capacity and the authority to depone to the averments in the impugned affidavit.
Issues in the judgment
#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
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.