British American Tobacco v Mwita & 2 others (Land Case Appeal E007 of 2025) [2026] KEELC 2758 (KLR)

Appellants’ Submissions 3. The Appellants filed submissions dated 9th January 2026. Counsel urged that none of the grounds of objection raised in the Preliminary Objection are merited, or even pure points of law. He pointed out that the 1st and 2nd Respondents have attached documents to the Preliminary Objection and thereby purport to introduce evidence to support the objections. He urged that it is trite that a preliminary objection is premised on pure points of law, as held by the Court of Appeal in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696. 4. Counsel laid down the background of the suit in the trial court and urged that the judgment was entered in favour of the Respondents on 20th March 2024 exp parte and thereafter, the Appellant instructed the firm of Kaplan & Stratton to come on record for the Appellant. The firm of Siganga & Company Advocates and the firm of Kaplan & Stratton Advocates duly filed a consent and a Notice of Change for the firm of Kaplan & Stratton to come on record of the Appellant. 5. Counsel cited the provisions of Order 9 of the Civil Procedure Rules (2010) and urged that the Appellant’s Counsel having obtained the consent of the outgoing Counsel, fully complied with the provisions of Order 9 of the Civil Procedure Rules. That therefore, the first ground of the Preliminary Objection is therefore without merit and ought to be dismissed. 6. On Whether the matter was determined by the National Land Commission, Counsel urged that the Respondents have attached a Title Deed in relation to the Suit Property and a letter purportedly issued by the National Land Commission. That the Appellant had never seen these documents before, and they did not form part of the record in the proceedings before the Chief Magistrate’s Court. In addition, the Appellant notes that the letter was after the impugned judgment and was not part of the record of the proceedings. 7. Counsel submitted that the respondents are asking the Court to make a finding on contested facts that are new to these proceedings and the proceedings before the Chief Magistrate’s Court which is not the function of a preliminary objection. He cited Kittony Maina Karanja Advocates v Bell Industries Limited [2019] eKLR, and further, submitted that the Preliminary Objection fails both the test as set out in Mukisa Biscuits Manufacturing Co. Ltd (supra) and Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Other, as the Preliminary Objection is not premised on a point of law, and asks for this Court to determine factual matters that are disputed. He urged the court to dismiss the Preliminary Objection with costs to the Appellant. Analysis and Determination 8. The main issue for determination is; Whether the Preliminary Objection is merited 9. In the case of Mukisa Biscuits Manufacturers v West End Distributor Ltd [1969] EA 696 it was held that; “ 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 facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion...” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2758/eng@2026-04-29 2

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10. The first point of law that the Respondents object is the compliance with Order 9 Rule 9 of the Civil Procedure Rules which provides as follows; When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be efiected without an order of the Court a. upon an application with notice to all the parties; or b. upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be. 11. The Appellant has indicated to the court that there was a consent filed and a Notice of Change of Advocate filed before they came on record. However, for this court to confirm the same it would also have to consider the evidence of representation in the trial court. It follows that this would then fall outside the scope of a Preliminary Objection as these are factual issues. 12. However, if the court is to consider the Objection without even looking at the record in the trial court, it is my considered view that an Appeal is a difierent “suit” of its own, having been filed in a separate Court from the one that entered a judgment. Therefore, in my humble view the provisions of Order 9 Rule 9 cannot be said to apply in the circumstances. The provisions of Order 9 Rule 9 are with regard to interlocutory applications that may arise after judgment in the same matter, such as applications for review and stay of execution, not to appeals. In Tobias M. Wafubwa Vs Ben Butali (2017) eKLR, the Court of Appeal held that:“ Once a judgment is entered, save for matters such as Applications for review or execution or stay of execution inter alia, an appeal to an appellate court is not a continuation of proceedings in the lower court but a commencement of new proceedings in another court, where difierent rules may be applicable, for instance, the Court of Appeal Rules 2010 or the Supreme Court Rules, 2010. Parties should therefore have the right to choose whether to remain with the same counsel or to engage other counsel on appeal without being required to file a Notice of change of Advocates or to obtain leave of court to be placed on record in place of the previous advocates.” 13. Similarly, and by the same token, the proceedings in this appellate court as compared to those of the subordinate court are difierent as much as both courts apply the same Civil Procedure Rules as opposed to the Court of Appeal and the Supreme Court which apply difierent sets of Rules of procedure. The upshot of the foregoing is that the objection on the basis of non-compliance with Order 9 Rule 9 of the Civil Procedure Rules fails. 14. Turning to the second limb, the Respondents have also raised the issue of the National Land Commission having made a finding on the registration of the suit land. They have gone to great lengths to prove their point, to the extent of attaching documentary evidence to the Preliminary Objection. This squarely introduces factual issues to their objection and invites this Court to venture into factual analysis and merits or otherwise of the said facts absent of testing the same through the processes of adduction of evidence and testing its veracity through examination and cross examination thereof. As held in Mukisa Biscuits (supra), a Preliminary Objection cannot determine matters of fact and therefore, the objection fails on this ground. 15. The upshot of the foregoing is that the Preliminary Objection is dismissed in its entirety with costs to the Appellant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2758/eng@2026-04-29 3

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16. This appeal shall be mentioned on 18th May 2026 for further directions regarding the admission thereof and fixing it for hearing, if admitted. 17. Orders accordingly RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 29TH DAY OF APRIL 2026. HON. DR. IUR NYAGAKA JUDGE In the presence of, Ms. Onyango Advocate for the Appellants Mr. Agure Advocate for the 1st and 2nd Respondents https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2758/eng@2026-04-29 4

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