https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5066

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT HOMA BAY** **ELC CASE NO. E083 OF 2025 (O.S)** ALFRED OKOTH OKONGO..................................................PLAINTIFF **VERSUS** CHARLES ORWA OKECH...........................................1ST DEFENDANT ELIJAH OKONGO.....................................................2ND DEFENDANT EVA AJWANG MAGAK..............................................3RD DEFENDANT LAND REGISTRAR HOMA BAY..................................4TH DEFENDANT THE LAND SURVEYOR.............................................5TH DEFENDANT HON. ATTORNEY GENERAL......................................6TH DEFENDANT **RULING** 1. By way of Originating Summons and Supporting Affidavit both dated 3rd December 2025 pursuant to order 37 Rules 7 and 14 of the Civil Procedure Rules who claims adverse possession of land parcel No. KASGUNGA/KAMRERI/401 and listed 10 questions for determination by this court. The originating summons is premised on the grounds that; 2. He is a biological son of Ammon Okongo (now deceased) the registered owner of land parcel No. KASGUNGA/KAMRERI/401 measuring approximately 7.03 ha who died intestate in the year 1982. 3. He has lived on the suit property for the whole of his life. 4. Currently there are two title deeds on the same land having the names of his late father and 2nd defendant herein. 5. No succession has been done on the estate of his father. 6. He is not aware how parcel no. 405 was created and how it came to overlap the parcel which he has established his home. 7. He believes that the officers in the land registry at Homabay County are responsible for fraudulent registrations. 8. The 1st defendant filed a Replying Affidavit sworn on 30th January 2026 while the 3rd defendant filed a Replying Affidavit sworn on 23rd February 2026 while the 2nd defendant filed a preliminary objection dated 19th February 2026. 9. The grounds of preliminary objection are as follows that; 10. The 2nd defendant has been improperly joined in these proceedings contrary to Order 1 Rule 3 and Order 1 Rule 10(2) of the Civil Procedure Rules, as no reasonable cause of action is disclosed against him. 11. The originating summons does not disclose any specific acts, omissions, proprietary interest, or legal duty attributable to the 2nd defendant in respect of KASGUNGA/KAMRERI/401 or the resultant parcels No. 4989 and 4990. 12. The inclusion of the 2nd Defendant is frivolous, vexatious, and amounts to an abuse of the court process. 13. The issues raised against the 2nd defendant require no factual interrogation as there is no pleaded nexus between him and the alleged adjudication, registration, subdivision, sale or succession process. 14. To the extent that the plaintiff’s originating summons raises issues concerning the administration, transmission, and distribution of the estate of the late Ammon Okongo (deceased), including allegations of failure to undertake succession proceedings, intermeddling with the estate, and the identification of lawful beneficiaries, the same fall exclusively within the jurisdiction of the High Court under Section 47 of the Law of Succession Act Cap 160 and the Probate and Administration Rules; and consequently, this Honourable Court, being the Environment and Land Court established under Article 162 (2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, lacks jurisdiction to determine such succession matters rendering the suit incompetent as against the 2nd defendant. 15. The objection was canvassed by way of written submissions. The Plaintiff opposed the objection while the 2nd Defendant urged the Court to uphold the same. The 1st Defendant indicated that he did not oppose the Preliminary Objection. **Determination.** 1. I have carefully considered the Preliminary Objection, the rival submissions and the authorities cited. 2. The first issue is whether the objection meets the threshold of a proper preliminary objection. 3. The law on what constitutes a preliminary objection is settled. In **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696**, Law JA stated: **"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."** 1. The Supreme Court reaffirmed the foregoing principle in **Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 Others [2015] eKLR, Petition No. 4 of 2015**, where it held that a preliminary objection must raise a pure point of law capable of disposing of the matter without the Court having to ascertain contested facts or evaluate evidence. 2. Likewise, in **Oraro v Mbaja [2005] eKLR**, Ojwang J. (as he then was) observed that: **"A preliminary objection correctly understood is now well identified as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and, in any event, to be proved through the processes of evidence."** 1. The Court must therefore determine whether the objections raised satisfy the above legal threshold. **Whether the 2nd Defendant has been improperly joined** 1. The 2nd Defendant argues that no reasonable cause of action has been disclosed against him and that he has been improperly joined. 2. However, a determination as to whether a party has been improperly joined necessarily requires the Court to examine the pleadings, the allegations made against that party, the documents relied upon and, where necessary, evidence explaining the relationship between the parties and the disputed transactions. 3. The Plaintiff alleges that there are two titles existing over the same parcel of land; that one of those titles is in the name of the 2nd Defendant; that parcel No. 405 was irregularly created; and that the resultant subdivisions overlap the land occupied by the Plaintiff. Whether those allegations are true or false cannot be determined without receiving evidence. 4. The Court cannot, at the preliminary stage, conclusively determine whether the 2nd Defendant has any legal or proprietary interest in the disputed land without interrogating facts. 5. Such an exercise falls outside the scope of a preliminary objection as explained in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696** and **Oraro v Mbaja [2005] eKLR**. 6. Equally, whether there exists a nexus between the 2nd Defendant and the alleged registration, subdivision or ownership of the suit property is itself a factual issue requiring evidence. 7. Consequently, grounds (a), (b), (c) and (d) of the Preliminary Objection do not raise pure points of law but rather invite this Court to evaluate contested facts. They therefore cannot properly found a preliminary objection. **Whether this Court lacks jurisdiction** 1. The second limb of the objection is that the dispute concerns succession to the estate of the late Ammon Okongo and therefore falls exclusively within the jurisdiction of the High Court exercising probate jurisdiction. 2. Jurisdiction is indeed everything. In **Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1**, Nyarangi JA famously held: **"Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for continuation of proceedings pending other evidence."** 1. The question therefore is whether the present suit is, in substance, a succession dispute. 2. From the Originating Summons, the Plaintiff seeks declarations founded upon adverse possession in respect of land parcel KASGUNGA/KAMRERI/401. The Plaintiff further alleges that there exist overlapping titles and that the land upon which he has lived throughout his life has been affected by subsequent registrations. 3. Although the pleadings refer to the deceased proprietor and the absence of succession proceedings, those averments merely provide the historical background of the dispute. 4. The principal issue remains whether the Plaintiff has acquired rights over the suit land by adverse possession and whether the existing registrations affecting the land are capable of defeating such claim. These are questions relating to title to land and interests in land. 5. Article 162(2)(b) of the Constitution established the Environment and Land Court to hear disputes relating to the environment and the use, occupation and title to land. Parliament operationalized that constitutional mandate through Section 13 of the Environment and Land Court Act, No. 19 of 2011, which grants this Court jurisdiction over disputes concerning title, occupation, use and interests in land. 6. Similarly, in **Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR**, the Supreme Court held that a court's jurisdiction flows from the Constitution or legislation and cannot be expanded or restricted by judicial craft. 7. While matters relating to administration and distribution of estates fall within the probate jurisdiction of the High Court under Section 47 of the Law of Succession Act, not every dispute involving land previously owned by a deceased person becomes a succession cause. 8. Where the dispute concerns ownership, occupation, title, adverse possession or competing interests in land, the Environment and Land Court retains jurisdiction notwithstanding that one of the parties traces title through a deceased person's estate. 9. Whether succession proceedings were undertaken, whether titles were lawfully issued, whether the Plaintiff has established adverse possession, and whether the registrations complained of are valid are all matters requiring evidence and determination after a full hearing. 10. At this stage, the Court cannot conclude that the suit is purely a succession dispute merely because the pleadings mention the deceased proprietor. 11. In my considered view, the objection on jurisdiction is therefore premature and misconceives the nature of the Plaintiff's claim as disclosed in the pleadings. **Disposition** 1. Having carefully considered the Preliminary Objection against the settled principles in the above cited cases, I am not persuaded that it raises pure points of law capable of disposing of the suit without recourse to evidence. 2. Accordingly, the Preliminary Objection dated 19th February 2026 is without merit and is hereby dismissed. 3. The costs of the Preliminary Objection shall abide the outcome of the main suit. 4. Orders accordingly. Ruling dated and delivered at Homa Bay this 23rd day of July 2026 via teams’ platform. **In the presence of;** 1. Osoro for the plaintiff -present 2. Okello for the 2nd plaintiff – Present 3. Okoth for the 1st defendant – Present JUSTICE J.W WANYONYI – JUDGE