Landluck Investments Ltd v Ruiru-Juja Water & Sewage Company Ltd (RUJWASCO) & another

4. That there is no evidence of a valid resolution or other internal corporate authority authorising the commencement and prosecution of these proceedings, or authorising the Plainti's Advocates to institute the suit. 5. That in the circumstances, the suit is incompetent, bad in law, and an abuse of the process of this Honourable Court. 6. That the Honourable Court ought to strike out and/or dismiss the suit with costs to the Defendants. 2. The Preliminary Objection is opposed by the 1st Defendant who swore a Replying Adavit on 22/07/2026. The Adavit is sworn by Ahmed Chege Gikera, a Director of the Plainti Company, Landluck Investments Limited, who stated that he was duly authorized by a Board Resolution to depose to the Adavit on behalf of the Plainti. He stated that he was in resolute opposition the Preliminary Objection on the grounds that it is misconceived, incompetent, and bad in law. 3. That contrary to Grounds 1 and 2 of the Objection, the Plainti holds the requisite locus standi to maintain this suit; while the Plainti previously contracted to sell part of its land to Wangai Properties Limited, the discovery of sewer infrastructure constructed and maintained by the Defendants led Wangai Properties Limited to decline purchasing the aected portion. Consequently, as evidenced by the bundled copies of the Sale Agreement, correspondence, survey documents, and transfer instruments annexed hereto and marked as "ACG-1", the encumbered portion was expressly excluded from the sale, never transferred, and remains fully vested in the Plainti as its retained property forming the sole subject matter of this claim. 4. Furthermore, in response to Ground 3 of the Preliminary Objection alleging that the Verifying Adavit was sworn without requisite authority, he reiterates that as a Director of the Plainti Company, he executed the Verifying Adavit pursuant to a valid decision of the Board of Directors. As demonstrated by the true copies of the Board Resolution and Minutes annexed hereto and marked as "ACG-2", the Board explicitly authorized the commencement of these legal proceedings and empowered him to execute the Verifying Adavit alongside all necessary supporting adavits. That the allegations in Grounds 3 and 4 are therefore factually erroneous, as the Plainti possesses direct proprietary interest in the retained land and full corporate authority to prosecute this matter before the Honorable Court. 5. He avers that whether the Plainti retained title over the disputed land, whether the suit was duly instituted, and whether he possessed proper authority are all contested questions of fact that necessitate the evaluation of documentary evidence. The Preliminary Objection directly oends the foundational principles governing preliminary points of law as laid down in the locus classicus decision of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696, which dictates that a Preliminary Objection must raise a pure point of law on undisputed facts without requiring the Court to probe evidence. Because the issues raised by the 1st Defendant are inherently factual and evidentiary, it is in the overriding interest of justice that the Preliminary Objection dated 16/06/2026 be dismissed with costs to the Plainti, allowing this suit to proceed to a full hearing on its merits. 6. On 21/07/2026, when this matter came up for directions, the parties were guided by Honorable Court whereby they agreed to have the said Preliminary Objection canvassed by way of written submissions. 7. The Plainti/Respondent complied by ling their written submissions dated 22/07/2026 by the time the Court retired to write this Ruling, the 1st Defendant/Objector failed to do so. None of its Objector nor the 2nd Defendant/Respondent is on record. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5568/eng@2026-09-21 2

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8. In summary the Plainti/Respondent the Plainti/Respondent asserts that the objection fails to satisfy the established threshold for a Preliminary Objection because it is grounded on contested facts rather than pure points of law. Citing the seminal authority of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696, the Plainti argues that a valid Preliminary Objection must consist of a pure point of law based on the assumption that all pleaded facts are true, and cannot be sustained where facts must be ascertained or evidence evaluated. The Plainti further relies on the decision of Ojwang J. (as he then was) in Oraro v. Mbaja [2005] eKLR to emphasize that Preliminary Objections cannot be founded upon disputed factual details liable to proof by evidence. Adjudicating the 1st Defendant's challenge to the Plainti’s locus standi would impermissibly require the Court to scrutinize various evidentiary items including the Sale Agreement, survey plans, transfer documents, and correspondence which conrm that the encumbered parcel occupied by sewer infrastructure was excluded from the sale to Wangai Properties Limited and remains retained by the Plainti. 9. Addressing the 1st Defendant's contention regarding corporate authority, the Plainti submits that the challenge to the deponent’s capacity and the Verifying Adavit is factually erroneous and legally misplaced. The Plainti has produced the Board Resolution and Minutes explicitly authorizing the commencement of the suit, the engagement of Advocates, and the execution of all necessary adavits by its Director, meaning the Court cannot resolve the objection without examining these documents. Furthermore, the Plainti notes that Kenyan Courts consistently hold that technical or procedural omissions regarding authority should not automatically defeat substantive justice where corporate authorization exists or is subsequently demonstrated. Because every ground advanced by the 1st Defendant invites an evaluation of documentary evidence rather than a threshold point of law, the Plainti submits that the Preliminary Objection constitutes an abuse of process and prays for its dismissal with costs. Issues for Determination 10. 11. Upon a critical examination of the Notice of Preliminary Objection dated 16/06/2026, the Replying Adavit sworn on 22/07/2026, and the Plainti/Respondent’s written submissions, the Court identies the following overarching issues for determination: i. Whether the 1st Defendant’s Notice of Preliminary Objection dated 16/06/2026 satises the statutory and judicial criteria of a pure point of law as established under Kenyan jurisprudence. ii. Whether the 1st Defendant’s challenges regarding the Plainti's locus standi being grounds 1 and 2 and corporate authority/the validity of the Verifying Adavit being grounds 3, 4, 5, and 6 can be determined by way of a Preliminary Objection without calling for or examining evidence. iii. What appropriate orders and directions should be issued regarding the disposition of the Preliminary Objection and the allocation of costs. In the Civil Procedure, the threshold for determining whether an objection can properly be taken in limine is rooted in the structure of the Civil Procedure Act (Cap 21, Laws of Kenya) and the Civil Procedure Rules, 2010. Specically, Section 19 of the Civil Procedure Act provides that every suit shall be instituted in such manner as may be prescribed by the Rules. Under Order 4 Rule 1(4) of the Civil Procedure Rules, 2010, where the Plainti is a limited liability company, the Verifying Adavit shall be sworn by an ocer of the company duly authorized under the seal of the company or pursuant to a resolution of the board of directors. Furthermore, Order 1 regulates the joinder of parties and requires that suits be brought by entities possessing a recognizable legal interest. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5568/eng@2026-09-21 3

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12. However, procedural objections regarding authority and locus standi are tempered by Article 159(2) (d) of the Constitution of Kenya, 2010, which mandates that justice shall be administered without undue regard to procedural technicalities, as well as Sections 1A and 1B of the Civil Procedure Act, which encapsulate the Oxygen Principle aimed at achieving the just, expeditious, proportionate, and aordable resolution of civil disputes. 13. When a party raises a Preliminary Objection seeking the striking out of a suit under these provisions, the Court must ascertain at the outset whether the objection raises a pure point of law or whether it impermissibly entangles the Court in factual determinations. 14. In Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others [2014] eKLR, the Supreme Court of Kenya authoritatively reiterated the strict boundaries within which a Preliminary Objection must operate, observing: “ 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. Examples are an objection to the jurisdiction of the Court, or a plea of limitation, or a submission that a parties action is barred by statute... It raised a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is exercised is the judicial discretion of the Court." 15. This principle was reinforced by the Court of Appeal in Quick Service Station v. Kenya Commercial Bank Limited [2015] eKLR, where the learned judges analyzed the fatal defect of anchoring a Preliminary Objection on contested evidentiary grounds, holding: “ A Preliminary Objection must stem from the pleadings and be based on undisputed facts. Where a Court is invited to look at documents, weigh evidence, or make factual ndings on contested assertions, the objection ceases to be a Preliminary Objection and becomes a contested interlocutory application that cannot be disposed of summarily at the threshold." 16. Applying these judicial pronouncements to the instant case, the 1st Defendant’s Preliminary Objection fails at the threshold. Grounds 1 and 2 assert that the suit property is registered in the name of Wangai Properties Limited and that the Plainti is a stranger to title lacking locus standi. Conversely, the Plainti’s Replying Adavit directly controverts this assertion, stating that while part of the land was sold to Wangai Properties Limited, the specic portion encumbered by the Defendants' sewer infrastructure was expressly excluded from the sale, never transferred, and remains retained by the Plainti under its original title. 17. To determine which of these two conicting assertions is correct, this Court would be forced to examine the Sale Agreement, survey maps, correspondence, and transfer instruments annexed as Exhibit "ACG-1". Under the binding holding in Quick Service Station v. Kenya Commercial Bank Limited [supra] the moment a Court is required to inspect documents and weigh contested evidence, the motion ceases to be a pure point of law. 18. Grounds 3, 4, and 5 of the Preliminary Objection allege that the Verifying Adavit was executed without proper corporate authority and that there is no board resolution authorizing the suit or the appointment of Advocates. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5568/eng@2026-09-21 4

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19. The law regarding corporate authority and procedural defects in adavits is well settled in Kenya. In Avint (K) Limited v. Director General, Kenya National Highways Authority & Another [2021] eKLR, the High Court confronted a similar objection regarding corporate authority and held: “ The question of whether a deponent has board authority to swear an adavit on behalf of a corporate entity is a matter of proof and evidence. Where a party produces a resolution or asserts authority, the Court cannot strike out the suit at a preliminary stage without evaluating the validity of that authority against the evidence presented. An objection alleging lack of authority is therefore not a pure point of law capable of summary determination under the guise of a Preliminary Objection." 20. Additionally, regarding the eect of procedural challenges under Order 4 Rule 1(4) of the Civil Procedure Rules, the Court of Appeal in DT Dobie & Company (Kenya) Limited v. Joseph Mbaria Muchina [1982] eKLR emphasized that Courts must exercise extreme caution before terminating proceedings summarily on technical grounds, declaring: “ No suit should be ousted at the threshold unless it is clear beyond peradventure that the action is hopeless, incompetent, or unsustainable in law. The Court's jurisdiction to strike out pleadings is to be exercised with great circumspection and only in the clearest of cases, where no amount of evidence can remedy the defect." 21. In the present case, the Plainti has exhibited a Board Resolution and Minutes as Exhibit "ACG-2" explicitly authorizing Ahmed Chege Gikera to institute these proceedings, appoint Advocates, and execute all necessary adavits. The 1st Defendant’s objection alleging absence of authority is therefore not only factually contested but directly contradicted by documentary evidence on record. Determining whether the resolution is valid or whether the deponent was properly empowered requires an evaluation of internal corporate documents a process that falls entirely outside the scope of a Preliminary Objection. 22. Substantively, every ground raised in the Notice of Preliminary Objection dated 16/06/2026 relies on disputed facts requiring evidentiary proof. In light of the statutory directives under Article 159(2) (d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act, and guided by the binding principles in Hassan Ali Joho, Quick Service Station, Avint (K) Limited, and DT Dobie, this Court nds that the Preliminary Objection is incompetent, misconceived, and an abuse of the Court process. 23. Upon a critical evaluation of the pleadings, the Replying Adavit, the written submissions, and the applicable law, this Court makes the following ndings and issues the following orders: a. The 1st Defendant’s Notice of Preliminary Objection dated 16/06/2026 does not raise pure points of law and is hereby dismissed in its entirety. b. Costs of the Preliminary Objection are awarded to the Plainti/Respondent, to be paid by the 1st Defendant/Objector in any event. c. The suit shall proceed to full hearing on its merits. The parties are directed to comply with Order 11 of the Civil Procedure Rules, 2010 regarding pre-trial directions by appearing before the Deputy Registrar on 15/10/2026. Orders Accordingly. DATED, SIGNED AND DELIVERED AT THIKA VIA MICROSOFT TEAMS ON THIS 21ST DAY OF SEPTEMBER 2026. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5568/eng@2026-09-21 5

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............................. MOGENI J JUDGE In the presence of: Plainti - Absent Ms. Mukenda holding brief for Ms. Nyongesa for the 1st Defendant 2nd Defendant - Absent Mr. Melita - Court Assistant ............................. MOGENI J JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5568/eng@2026-09-21 6

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