https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3751

Abok v Okundi (Enviromental and Land Originating Summons E078 of 2025) [2026] KEELC 3751 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEELC 3751 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Enviromental and Land Originating Summons E078 of 2025 JW Wanyonyi, J June 12, 2026 Between Martin Otieno Abok Plaintiff and Eng Philip Okoth Okundi Defendant Ruling RUling On Preliminary Objection 1.This suit was commenced by way of Originating Summons dated 5th November, 2025 accompanied with a supporting Affidavit sworn by Martin Otieno Abok dated the same date. 2.a.The Plaintiff/Applicant seeks inter-alia for a declaration that the defendant's right to recover the suit property is barred under the Limitation of Actions Act, Cap 22 Laws of Kenya and title extinguished on the ground that the Plaintiff/Applicant has openly and peacefully, notoriously, and continuously been in occupation and possession of the suit property for a period of 22 years and since registration of the Respondent as the title holder in May, 2010, for over 15 years.b.The Plaintiff/Applicant be registered as the proprietor of the whole of the suit property measuring approximately 2.89 Hectares having been entitled to the same by Adverse possession. 3.The Originating Summons was filed together with a Certificate of Urgency and notice of motion dated 5th November, 2025 in which the Plaintiff/Applicant sought for Interim orders. 4.Upon filing the certificate of urgency on 7th November, 2025 the Court gave directions for service and hearing of the application. 5.On 9/12/2025 Counsels representing both parties appeared as directed and Mr. Wesonga intimated, he had filed a Preliminary Objection dated 27th November, 2025 together with Submissions and authorities. 6.It was then agreed that the status quo be maintained pending the hearing and determination of the Preliminary Objection, and the subsequent hearing of the suit. 7.The Court then gave a date for ruling on 4/3/2026. 8.Unfortunately, on the said date the ruling was not ready for the reason that the file was not brought to the Court's attention. ​preliminary Objection. 11.The Preliminary Objection filed by Okundi & Co. Advocates on behalf of the Defendant contains eight (8) grounds summarized as hereunder:a)The Originating Summons is dead in arrival as it offends section 7, 13 and 38 of the Limitation of Actions Act, the applicant having no continuous, no peaceful, no exclusive and no uninterrupted 12-year period of possession.(b)The applicant personally destroyed his own suit by filing an earlier suit.(c)Under Githu V Ndeete (1984) KLR 776 the clock stopped permanently the moment he filed the earlier case.​(d)Withdrawal of the previous suit does NOT resuscitate or resurrect the lost time.​(e)The 2nd suit is a calculated attempt to re-litigate a claim already abandoned.​(f)The authorities of Wambugu vs Njuguna, Samuel Miki Waweru vs Jane Richu and Wanduree Public Trustee all unanimously destroy the Applicant's case.​(g)The Honourable Court’s time should not be wasted on a claim that is legally impossible to sustain.​(h)The Originating Summons dated 5th November, 2025 be struck out forthwith with punitive costs. Submissions. 12.I have gone through the CTS, and it is apparent that only the Defendant/Respondent filed submissions dated 1st December, 2025 in respect of the Preliminary Objection. 13.Nonetheless, failure to file Submissions on the part of the Plaintiff does not automatically lead to allowing the Preliminary Objection. 14.The Court has an attendant duty to consider the merits of the Preliminary objection. 15.The Respondent has framed five issues for determination and addressed each of them individually. 16.. Counsel for the Respondent has referred the Court to the celebrated case of Mukisa Biscuit Manufacturing Co Ltd versus West End Distributors Ltd (1969) EA 696 which states that an Objection must be premised on purely a point of Law; Wambugu versus Njuguna (1983) KLR which emphasized that possession must be unbroken; Githu versus Ndeek (1984) KLR 776 where held the Court of Appeal held that time ceases to run once legal proceedings are brought respecting the land; Public Trustee versus Wanduru (1984) KLR 314 where it was held that adverse possession must be continuous, exclusive, unbroken and hostile; Samuel Miki Waweru V Jane Richu (2007) eKLR where the court held that time does not run in favour of a person who asserts a claim to the land by filing a suit; Muchangat Investment Ltd Versus Safaris unlimited (Africa) Limited (2009) eKLR and Benjoh Amalgamated Limited (2014) where the conduct of re-newing suits was condemned and lastly Owners of Motor Vessel Lilian S. V. Caltex Oil (Kenya) Limited (1989) where the Court held that jurisdiction is everything. 17.The Respondent concludes by stating that the Applicant's claim is statutorily impossible, judicially extinguished , a procedurally abusive and incapable of meeting the 12 year threshold. Determination 18.The singular issue for determination is whether the Preliminary Objection is merited and what orders should be made. 19.Order 2 Rule 15(1) of the Civil Procedure Rules, 2010 provides that , at any stage of the proceeding the Court may order to be struck out or amended any pleading on the ground that:(a)It discloses no reasonable cause of action or defence in law, or(b)It is scandalous, frivolous or vexatious, or(c)It may prejudice, embarrass or delay the fair trial of action,(d)It is otherwise an abuse of the court process of the Court. 20.In Kivanga Estate Limited Versus National Bank of Kenya Limited [2017] eKLR it was held:“striking a pleading though draconian, the Court will in its discretion resort to it, where for instance, the Court is satisfied that the pleading has been brought in abuse of its process or where it is found to be scandalous, frivolous or vexatious. Where the court below has properly addressed itself on these principles, is satisfied, upon assessment of the material before it that any amendment under Order 2 Rule 15 exists as an appellate court, this court will not interfere with the former’s discretionary power to strike out the pleadings.’’ 21.In the case of Satya Bhama Gadi Versus the DPP and 3 Others (2018) the scope of abuse of process was defined as follows:“The Black law dictionary defines abuse as 'Everything which is contrary to good order established by usage that is of complete departure..." from "reasonable use." An *abuse* is done when one makes an excessive or improper use of a thing, or to employ such thing in a manner contrary to the natural legal rules for its use. The concept of *abuse of court/judicial process* is imprecise and involves circumstances and situations of infinite variety and conditions.It is recognized that the abuse may lie in either proper or improper use of the judicial process in litigation. However, the employment of judicial process is only regarded as abuse generally when a party improperly uses the issue of judicial process to find annoyance, irritation and annoyance of his opponent. The situation that may give rise to an abuse of the court process are indeed in-exhaustive; it involves situations where the court process has not been or resorted to fairly or properly to the detriment of the other party. 22.Regarding Preliminary Objection, the Black's Law Dictionary defines the same as follows:“In a case before the tribunal, an objection that if upheld, would render further proceedings before that tribunal impossible or unnecessary." 23.In the case of Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd (1969) EA 696, Newbold held that a proper Preliminary Objection consists of a point of Law. 24.In Attorney General & Another versus Andrew Mwaura Githinji & Another (2016) eKLR, the Court stated thus:I.A preliminary objection raises a pure point of Law which is argued on the assumption that all facts pleaded by the other side are correct.II.A preliminary objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion and ;III.The improper raising of points of Law by way of Preliminary Objection does nothing but unnecessarily increase of costs and on occasion confuse issues in dispute. Whether the preliminary objection meets the threshold 25.In the Preliminary Objection, the Respondent contends that the Originating Summons is dead on arrival as the Applicant here had no continuous, peaceful, exclusive and uninterrupted 12 years period of occupation. 26.He also says the Applicant had filed an earlier suit whose details are yet to be disclosed. 27.It is clear that for a Preliminary Objection to qualify as a pure point of Law facts should not be contested as the Court would need to delve into evidence so to establish the Veracity thereof. 28.For the Court to determine whether the period of occupation is continuously peaceful, exclusive and uninterrupted, parties will be required to file documentary evidence and thereafter testify in Court on Oath. 29.Regarding the cases referred to, the Respondent has not given any particulars or furnished evidence through an affidavit for the court to determine that there was such a case, and that, same was withdrawn so as to determine whether the current suit is an abuse of the due process or not. 30.In any event, if the Respondent had the impression that the suit filed is an abuse of court process he ought to have filed a notice of motion under Order 2 Rule 15 then attach the relevant documents in support. 31.Had he taken such a step, the Court would have considered the application for striking out on its merits and make a proper decision. 32.The issues raised in the Preliminary Objection are issues which ought to have been raised in the replying affidavit as a defense to the claim. 33.Striking out a suit prematurely is a draconian measure which should be resorted only as a last resort, especially, when the suit is hopeless and cannot be injected with life even by way of amendment. 34.The duty of the Court is to dispense justice to the parties as enjoined by section 1A and 1B of the Civil Procedure Act and Article 159(2) of the Constitution. Courts are enjoined to dispense substantive justice without being shackled by technicalities of procedure. 35.Section 3 of the Environment and Land Court Act and Section 19 (1) of the Environment and Land Court Act mirrors the provisions of the Civil Procedure Rule and the Constitution. 36.I agree with the observation made in the case of AG & Another versus Andrew Mwaura Githinji & Another (Supra), that improper raising of points of Law by way of Preliminary Objection increases costs, confuses issues. This is because facts are mixed with Law hence distracting the proceedings. 37.It is the plea of this Court that all parties through their Counsels should co-operate so as to fast-track the hearing and ensure each party has his/her day in Court. 38.The upshot is that; I find that the Preliminary Objection as pleaded lacks in merit and suffers the fate of dismissal. 39.Costs shall abide the outcome of the suit. 40.It is so ordered. RULING DATED AND DELIVERED VIRTUALLY THIS 12TH DAY OF JUNE 2026.In the presence of;Mr. Ngari for the plaintiff- presentWesonga for the defendant, presentMartin Otien Abok, plaintiff -presentCourt Assistant; Ms. Awino, present JUSTICE JOHN WALTER WANYONYI.