https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3167

Gitau v Mungai & another (Environment and Land Case E557 of 2025) [2026] KEELC 3167 (KLR) (25 May 2026) (Ruling) Neutral citation: [2026] KEELC 3167 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E557 of 2025 MN Kullow, J May 25, 2026 Between Charles Waweru Gitau Plaintiff and Ann Wanjiku Mungai 1st Defendant Charles Thairu Mungai 2nd Defendant Ruling 1.This Ruling is in respect of the Notice of Preliminary Objection dated 20th January 2026 and filed by the Defendants. 2.The Preliminary Objection is premised on the following grounds:a.That the Plaintiff’s suit is statute-barred under Section 4(1) of the Limitation of Actions Act, Cap 22 Laws of Kenya, the claim being founded on an alleged contract and/or inter vivos gift of land alleged to have arisen in or about the year 2014, more than six (6) years prior to the filing of the suit.b.That in law, a conditional gift of land constitutes a contractual obligation, and any claim arising therefrom is subject to the six-year limitation period applicable to actions founded on contract, time running from the date the cause of action accrued.c.That the Plaintiff’s claim is therefore time-barred, incompetent, incurably defective, and unsustainable in law.d.That the Plaintiff’s suit is frivolous, vexatious, misconceived, and an abuse of the court process and ought to be struck out with costs to the Defendants. 3.The Preliminary Objection was canvassed by way of written submissions. Submissions of the Defendant 4.Counsel for the 1st and 2nd Defendants/Applicants submitted that the Plaintiff’s suit together with the Notice of Motion dated 16th December 2025 is statute-barred pursuant to Section 4(1)(a) of the Limitation of Actions Act, Cap 22 Laws of Kenya. Counsel argued that the Plaintiff’s claim is founded on an alleged inter vivos and/or conditional gift of land, together with alleged agreements, acknowledgements and payments said to have occurred between the years 2010 and 2014. 5.It was submitted that the alleged cause of action crystallized in or about the year 2014, yet the present suit was only instituted in the year 2025, well outside the statutory six-year limitation period applicable to contractual claims. In support of that position, reliance was placed on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where the Court held that a preliminary objection consists of a pure point of law capable of disposing of a suit, and on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, where the Court stated that jurisdiction is everything and that without it a court has no power to take one more step. 6.The Defendants further submitted that the Plaintiff’s attempt to characterize the suit as one founded on adverse possession was legally untenable and inconsistent with his own pleadings. Counsel contended that the Plaintiff’s occupation of the suit property, if any, arose from permission allegedly granted pursuant to a gift or agreement and could therefore not constitute adverse possession in law. It was argued that possession founded on permission, licence or contractual arrangement cannot become adverse unless such permission is expressly repudiated and hostile possession demonstrated. 7.According to the Defendants, the Plaintiff was merely attempting to recast a contractual claim into one for adverse possession so as to evade the statutory limitation period. Reliance was placed on Kinako v Attorney General & 5 Others (2023), where the Court allegedly held that claims founded on conditional land transfers are subject to the six-year limitation period under Section 4(1) of the Limitation of Actions Act, and on Bell v Moi & Another (2013), where the Supreme Court purportedly affirmed that claims arising from incomplete or conditional gifts are contractual in nature and governed by Section 4(1) of the Act. 8.Counsel lastly submitted that once a suit is found to be statute-barred, the Court is divested of jurisdiction and all interlocutory applications founded on such suit automatically collapse. It was argued that the Notice of Motion dated 16th December 2025 was therefore incompetent ab initio. The Defendants further contended that equitable considerations such as alleged possession, payments and family arrangements could not override express statutory provisions on limitation, adding that no trust had been pleaded capable of taking the matter outside limitation. 9.Reliance was also placed on Daykio Plantations Limited v Galba Mining Limited & 20 Others (2019), where the Court struck out a claim founded on a conditional land transaction filed outside the limitation period, and on Attorney General & Another v Andrew Maina Githinji [2016] eKLR, where the Supreme Court emphasized that limitation statutes serve the public interest of certainty and finality in litigation. On that basis, the Defendants urged the Court to uphold the Preliminary Objection and strike out both the suit and the application with costs. Submissions of the Plaintiff 10.In opposing the Preliminary Objection, Counsel for the Plaintiff submitted that the Plaintiff’s claim is not founded on contract but rather on the doctrine of adverse possession. Counsel argued that the Defendants had misconstrued the nature of the suit by treating it as a contractual dispute arising from an inter vivos gift or agreement, whereas the Plaintiff’s case concerns occupation and possession of land. 11.It was submitted that since the suit is grounded on adverse possession, the limitation period applicable is that provided under Sections 7 and 10 of the Limitation of Actions Act, namely twelve years. Counsel further contended that the Defendants had unlawfully trespassed onto Land Parcel No. Dagoretti/waithaka/2043 in the year 2021 despite the same having been gifted to the Plaintiff by the deceased, Stephen Mungai Thairu. The Plaintiff also argued that had the suit been contractual in nature, then the proper forum would have been the Magistrates’ Court and not the Environment and Land Court. 12.Counsel for the Plaintiff further submitted that the Preliminary Objection did not meet the threshold established in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 because it raised contested factual issues requiring interrogation through evidence. Reliance was also placed on Oraro v Mbaja [2005] 1 KLR 141, where Ojwang J. held that a matter requiring ascertainment of facts or production of evidence cannot properly be raised as a preliminary objection. 13.Counsel additionally cited China Road & Bridge Corporation v Kelvin Nyuki Machimbo [2019] eKLR, where the Court reiterated that a preliminary objection can only be sustained where facts are uncontested and deemed admitted on the face of the pleadings. It was submitted that the present objection necessitated examination of evidence relating to the Plaintiff’s possession and the alleged fraudulent acquisition of the suit property by the Defendants and therefore could not be determined as a pure point of law. 14.On the issue of limitation and adverse possession, Counsel submitted that the Plaintiff’s claim was legally sustainable and fell within the statutory framework governing adverse possession claims under Sections 7 and 10 of the Limitation of Actions Act. Reliance was placed on Mtana Lewa v Kahindi Ngala Mwagandi [2005] eKLR, where the Court described adverse possession as a situation where a person takes possession of land and asserts rights over it for a period of twelve years while the registered owner neglects to assert title. 15.Counsel also cited Agnes Wachu Wamae & 97 Others v Barclays Bank of Kenya Limited [2020] eKLR and Peter Oduor Ngoge v Hon. Francis Ole Kaparo & 5 Others [2012] eKLR on the nature of a preliminary objection as a pure point of law argued on the assumption that the pleaded facts are correct. Further reliance was placed on Hammers Incorporation Co. Ltd v The Board of Trustees of the Cashewnut Industry Development Trust Fund [2015] TZCA 6 and Nahshon Mogonchi v Evans Ondieki [2025] eKLR, where courts cautioned against the improper use of preliminary objections to obstruct substantive justice. On that basis, the Plaintiff urged the Court to dismiss the Preliminary Objection with costs. Analysis and Determination 16.I have considered the Grounds of the Preliminary Objection, the rival submissions by Counsel and the authorities cited by the parties. The issue falling for determination is whether the Preliminary Objection dated 20th January 2026 is merited. 17.It is now settled law that a Preliminary Objection must be founded on a pure point of law and not on contested facts requiring ascertainment through evidence. The classical exposition of that principle is found in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where Law JA stated as follows: “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.” 18.The said principle was reaffirmed by the Supreme Court in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport & Infrastructure & 3 Others (Petition No. 17 of 2015) [2021] KESC 39 (KLR) where the Court stated: “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 the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.” 19.The Defendants’ Preliminary Objection is premised on the argument that the Plaintiff’s claim is founded on a contractual arrangement and/or a conditional inter vivos gift of land allegedly arising in the year 2014 and is therefore statute-barred under Section 4(1)(a) of the Limitation of Actions Act. 20.The Plaintiff, on the other hand, maintains that his claim is not contractual but rather one founded on adverse possession under Sections 7 and 10 of the Limitation of Actions Act. 21.From the pleadings filed before Court, the Plaintiff claims entitlement to the suit property on account of occupation and possession thereof, while the Defendants contend that the Plaintiff’s occupation arose from permission pursuant to an alleged gift or agreement. In my view, the determination of whether the Plaintiff’s occupation was permissive, contractual, hostile or adverse is a matter that calls for interrogation of evidence and factual circumstances surrounding the Plaintiff’s entry into and occupation of the suit property. 22.Further, the Court would be required to ascertain, inter alia, when the Plaintiff allegedly took possession of the suit property, the nature of such possession, whether the same was permissive, whether and when such permission, if any, was repudiated, and whether the ingredients of adverse possession have been established. These are not matters capable of determination at a preliminary stage without the benefit of evidence. 23.The Court is persuaded by the holding in Civil Suit No 85 of 1992 Oraro v Mbaja [2005] 1 KLR 141, where Ojwang J. (as he then was) stated that: “Any assertion which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection. “Similarly, in Nthia v Kenyatta University [2025] KEHC 13220 (KLR) the Court reiterated that a preliminary objection can only be sustained where there is no contest as to the facts. 24.In the present case, I find that the issues raised by the Defendants are intertwined with contested facts which can only be properly resolved upon hearing evidence from the parties. The question whether the Plaintiff’s claim is contractual in nature or one founded on adverse possession cannot be conclusively determined at this interlocutory stage. 25.Consequently, I am not satisfied that the Preliminary Objection raises a pure point of law capable of disposing of the suit without recourse to evidence. The same therefore fails the threshold set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. 26.The upshot is that the Preliminary Objection dated 20th January 2026 is devoid of merit and the same is hereby dismissed with costs to the Plaintiff. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 25TH DAY OF MAY, 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Ms. Muthoni for the Plaintiff/RespondentMs. Kaburo for the Defendants/ApplicantsPhilomena W. Court Assistant