Mathenge v Maina & another (Environment and Land Case 566 of 2014) [2026] KEELC 5347 (KLR)
The bottom line
#A Kenyan land court paused a decades-old case because suing a company in liquidation needs the High Court Insolvency Division's permission first.
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 that continuation of proceedings against a company in liquidation without leave under Section 432(2) of the Insolvency Act is merited, and whether the ELC has jurisdiction to grant such leave
- 2.Whether the Plaintiff's suit to enforce/adopt the Land Disputes Tribunal award is time-barred under Section 4(4) of the Limitation of Actions Act
- 3.Whether the Plaintiff's Notice of Motion dated 9th February 2024 to enjoin the Official Receiver/Liquidator and continue proceedings should be granted
Key legal issues
#Jurisdiction to grant leave to continue proceedings against a company in liquidation
The ELC cannot grant leave under Section 432(2); only the High Court Insolvency Division can. The PO on this ground succeeds.
The court adopted Eboso J's reasoning in Bernard Kamau Mbugua that allowing every court to grant leave would compromise orderly liquidation. Section 2 of the Insolvency Act defines 'court' as the High Court and, where an insolvency division exists, that division. Since the 2nd Defendant is in liquidation, these proceedings can only continue with the Insolvency Court's approval, which the ELC cannot give.
Effect of voluntary liquidation on the leave requirement
Voluntary liquidation does not exempt a party from the leave requirement under Section 432(2).
The Plaintiff argued the liquidation was voluntary, not ordered by the court. The court held that the provision applies to all forms of liquidation once a company is in liquidation, and rejected the argument that the mode of commencement matters. The Official Receiver had similarly submitted the requirement applies to all forms of liquidation.
Whether the suit is time-barred under Section 4(4) of the Limitation of Actions Act
The Tribunal award, adopted as a court order in 2000, is time-barred after twelve years; however, striking out is not ordered because the Court of Appeal reinstated the suit for hearing on a priority basis.
The court found the suit against the 2nd Defendant subsisted and the Plaintiff should have enforced the decree, but the award adopted on 21st July 2000 exceeded the twelve-year limit. Nonetheless, because the Court of Appeal in Civil Appeal No. 110 of 2019 expressly reinstated the suit for hearing on a priority basis, the court declined to strike it out on limitation alone.
Definition and scope of a preliminary objection
A preliminary objection is a point of law which, if upheld, disposes of the suit, per Mukisa Biscuit.
The court cited Black's Law Dictionary and the classic Mukisa Biscuit formulation, that a preliminary objection consists of a point of law pleaded or arising by clear implication from the pleadings which may dispose of the suit.
Legal principles established
#- Proceedings against a company in liquidation may be begun or continued only with the approval of the High Court (Insolvency Division) under Section 432(2) of the Insolvency Act, and the Environment and Land Court lacks jurisdiction to grant such leave
- The leave requirement under Section 432(2) applies regardless of whether the liquidation was voluntary or court-ordered
- An action may not be brought upon a judgment after the end of twelve years from the date of delivery of the judgment (Section 4(4), Limitation of Actions Act)
Court orders
#- 1.The preliminary objection succeeds in respect of the first two preliminary points (jurisdiction under Section 432(2) of the Insolvency Act and limitation)
- 2.The Plaintiff's Notice of Motion dated 9th February 2024 is found incompetent and not granted
- 3.The proceedings are paused (stayed) until the Insolvency Court grants leave to proceed with the matter
- 4.Costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court); Insolvency Act, Section 432(2) and Section 2 (definition of 'court'); Limitation of Actions Act, Section 4(4)
Relief refused
#Application to enjoin the official receiver/liquidator and continue proceedings on behalf of the 2nd Defendant
The Environment and Land Court lacks jurisdiction to grant leave under Section 432(2) of the Insolvency Act; only the High Court Insolvency Division may approve continuation of proceedings against a company in liquidation
Continuation/adoption and enforcement of the Land Disputes Tribunal award
The award, adopted as a court order on 21st July 2000, is now time-barred under Section 4(4) of the Limitation of Actions Act (twelve years)
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.
The PO succeeds to that extent. Costs in the cause.
In summary, it is my finding that the first two preliminary points of objection raised by the 2nd Defendant are germane. However, in light of precedents, instead of striking out the suit, this Court pauses the proceedings until the Insolvency Court grants leave to proceed with this matter.
the Environment and Land Court lacks the jurisdiction to grant such approval or leave.
It matters not that the commencement of the liquidation process was voluntary.
It is my view that the award of the Land Disputes Tribunal, which was adopted as an order of the Court, is now time-barred.
a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.
Issues in the judgment
#Date of delivery appears to be in the future (19th August 2026), and directions are stated as given on 9th December 2025 although the supporting application is dated 9th February 2024
Internal chronology inconsistencies: paragraph 9 says the suit was instituted by a plaint dated 12/4/1996, but paragraph 29 says the matter was instituted on 3rd April 1997
Internal inconsistency on the limitation holding: paragraph 32 states the award is time-barred, yet paragraph 33 states the limitation point does not lead to striking out because the Court of Appeal reinstated the suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mathenge v Maina & another (Environment and Land Case 566 of 2014) [2026] KEELC 5347 (KLR)", Case Analysis (2026). ELC NO 566 OF 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5347/eng@2026-08-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.