Njuguna v Chumo
The bottom line
#The Environment and Land Court in Eldoret dismissed a bid to throw out a land suit, confirming that a preliminary objection cannot be used to attack an existing court order.
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 Defendant's Objection that substitution of the Plaintiff ought to have been done within one year under Order 24 Rule 3(1) and (2) of the CPR and that the suit has consequently abated has surmounted the test of a Preliminary Objection
- 2.Whether the Defendant's Objection that the Plaintiff lacks locus standi to bring the suit as a sole administrator where the Grant was issued to four administrators has surmounted the test of a Preliminary Objection
- 3.If the answer to Question (i) is in the affirmative, whether by operation of law substitution ought to have been done within one year and the suit has consequently abated
- 4.If the answer to Question (ii) is in the affirmative, whether the Plaintiff lacks locus standi to bring the suit as a sole administrator
- 5.Which party should bear the costs of this Application
Key legal issues
#Whether the abatement objection under Order 24 Rule 3(2) CPR is a sustainable Preliminary Objection
Although abatement ordinarily raises a pure point of law, this objection was distinguishable because it extended beyond abatement to challenge the validity of a subsisting order allowing substitution, which is an appellate question
The court held that once Justice E. Washe dismissed the NTSC and allowed the substitution application, any challenge to those determinations morphed into an appellate question. Re-opening them before a Judge of coordinate jurisdiction via a PO would amount to a collateral attack on a valid judicial decision. The proper recourse was appeal or review, not a PO.
Whether the sole-administrator locus standi objection is a sustainable Preliminary Objection
The objection failed the test of a PO; the issue of locus standi of one personal representative instead of four should have been raised at the hearing of the substitution application and is now barred by res judicata
The substitution of one of the four personal representatives was conclusively determined by the Ruling of 12th March 2026, which is subsisting and binding. Any challenge to that determination transcends a pure point of law and should have been prosecuted when the substitution application was heard; a subsequent challenge cannot surmount the doctrine of res judicata.
Costs of the Preliminary Objection
Costs follow the event but the court, in its discretion, ordered that costs of the PO abide the outcome of the main suit
The court set out beacons for the exercise of the costs discretion, including that costs follow the event unless there is good cause to negate it, and that costs compensate rather than penalize. Considering the PO was not far-fetched, the court directed that costs of the PO abide the outcome of the main suit.
Legal principles established
#- A Preliminary Objection must be a pure point of law, unblemished by disputed or unascertained facts or the exercise of judicial discretion
- Once a court of coordinate jurisdiction has allowed substitution of a deceased plaintiff, any challenge to that order is an appellate question and cannot be raised by way of Preliminary Objection
- A Preliminary Objection is not a substitute for an appeal against a subsisting judicial order
- Striking out a suit is a draconian, dispositive step to be exercised only in plain and obvious cases and as a last resort
Court orders
#- 1.The Defendant's Preliminary Objection dated 26th May 2026 on abatement under Order 24 Rule 3(1) and (2) of the CPR is dismissed
- 2.The Defendant's Preliminary Objection dated 26th May 2026 on the substituted Plaintiff's lack of locus standi as a sole administrator is dismissed
- 3.The costs of the Preliminary Objection shall abide by the outcome of the suit
- 4.The matter shall be set down for mention for Case Management Conference at the earliest on a priority basis
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court jurisdiction under Article 162(2) of the Constitution (land dispute concerning proprietary rights under Article 40); the ruling determines a Preliminary Objection under the Civil Procedure Rules
Relief refused
#Striking out of the suit for want of jurisdiction with costs to the Defendant
The PO raised issues transcending a pure point of law, including the validity of a subsisting order of a Judge of coordinate jurisdiction allowing substitution; challenging it via PO would be a collateral attack, the proper remedy being appeal or review
Costs
The costs of the Preliminary Objection shall abide by the outcome of the suit
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.
It follows that this issue cannot be re-opened before a Judge of coordinate jurisdiction in guise of a PO.
A PO is not a substitute for an appeal.
Accordingly, the PO is unsustainable.
The Defendant's Preliminary Objection dated 26th May 2026 – to the effect that by operation of Order 24 Rule 3(1) and (2) of the CPR, substitution of the Plaintiff ought to have been done within one year and that the suit has consequently abated - is dismissed.
The costs of the Preliminary Objection shall abide by the outcome of the suit.
Considering the old age of this matter, it shall be set down for mention for Case Management Conference at the earliest on a priority basis.
Issues in the judgment
#Paragraph 37 describes the NTSC outcome confusingly, saying counsel explained why the suit should not be dismissed and the judge 'proceeded to dismiss the NTSC'
The court finds the PO unsustainable yet describes it as 'not far-fetched' when exercising the costs discretion
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njuguna v Chumo", Case Analysis (2026). Environment and Land Case E041 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5554/eng@2026-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.