https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4932

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BUSIA** **ELC LOS NO. E034 OF 2025** **EUGINE OKWARA OKHOBA ………………………..….......…. APPLICANT** **= VERSUS =** 1. **BENARD LUKAKHA MUROMBI …………...…… 1ST RESPONDENT** 2. **BASILISA ANYANGO LUKAKHA ………....……. 2ND RESPONDENT** 3. **STEPHEN ANYANGO LUKAKHA …..…………… 3RD RESPONDENT** 4. **EPHRAIM ONYANGO LUKAKHA …………..…… 4TH RESPONDENT** 5. **MATILDA OUMA ……………………..……..……… 5TH RESPONDENT** 6. **ALICE WANZALA …………………………..………. 6TH RESPONDENT** 7. **SUNSET ODHIAMBO ………………..……..…….. 7TH RESPONDENT** 8. **FREDRICK OKUMU LUKAKHA ………..………. 8TH RESPONDENT** 9. **KIZITO NOEL LUKAKHA ………….……..……… 9TH RESPONDENT** 10. **PRAXIDES ACHIENG LUKAKHA ………..…… 10TH RESPONDENT** 11. **FREDRICK MAKOKHA ……………..….………. 11TH RESPONDENT** 12. **CHRISPINUS NYONGESA ………..…….……… 12TH RESPONDENT** 13. **HUMPHREYS OPIYO ……………….…..……… 13TH RESPONDENT** 14. **CONSTANT MOSES …………………..…….…… 14TH RESPONDENT** 15. **JOHN OKELO ………………………….…..…….. 15TH RESPONDENT** 16. **ANTHONY ODHIAMBO ………..……………. 16TH RESPONDENT** 17. **STEPHEN ODHIAMBO …………….….……. 17TH RESPONDENT** **= AND =** **COUNTY GOVERNMENT OF BUSIA ……...… INTERESTED PARTY** **R U L I N G** 1. Before this Honourable Court for determination is the Notice of Preliminary objection dated 20th February 2026, raised by the interested party herein. 2. The Interested Party raised a Preliminary Objection seeking to strike out the suit on the ground that Government land cannot be acquired by adverse possession under **Section 41(a)(i)** of the **Limitation of Actions Act**. **Interested Party's Arguments** 1. Plot No. 12, Nyapera Market, is public land owned by the County Government of Busia. 2. The allocation letter or allotment that was issued to Emmanuel Lukakhia Murombi did not confer ownership but only entitled him to apply for a lease. 3. **Section 41(a)(i)** of the **Limitation of Actions Act** expressly excludes Government land from claims based on adverse possession. 4. Since the suit seeks to acquire rights over Government land through adverse possession, it is incompetent and should be struck out with costs. **Respondents' Arguments** 1. The Respondents support the Preliminary Objection and agree that the suit is barred by **Section 41(a)(i)** of the **Limitation of Actions Act.** 2. They argue that the Applicant himself admits the County Government owns the land by stating that he sought allocation from the County Government and has been paying rates to it. 3. They rely on judicial authorities holding that Government land cannot be acquired through adverse possession. 4. They urge the Court to uphold the Preliminary Objection and strike out the suit with costs. **Applicant's Arguments** 1. The Applicant argues that he is not seeking ownership (title) or an easement over Government land but recognition of a leasehold interest. 2. He contends that the dispute is between himself and the Respondents as to who is entitled to the lease, and not a challenge to the County Government's ownership. 3. He submits that the County Government's rights over the land remain unaffected regardless of the outcome of the suit. 4. The Applicant argues that the Preliminary Objection is therefore misconceived and should be dismissed because the Court has jurisdiction to determine disputes relating to leases and interests in land. **Analysis and Determination** 1. Having considered the Notice of Preliminary Objection raised by the Interested party, the rival submissions and arguments therein, the following issues arise for determination: 2. **Whether the Preliminary Objection raises a pure point of law.** 3. **Whether the Applicant`s claim is barred by section 41 (a) (i) of the Limitation of Actions and, if so, whether the suit ought to be dismissed out with costs.** **On whether the Preliminary Objection raises a pure point of law:** 1. A preliminary objection must raise a pure point of law capable of disposing of the suit without the court having to ascertain disputed facts or exercise judicial discretion. 2. This principle was settled in **Mukisa Biscuit Manufacturing Co. Ltd -v- West End Distributors Ltd [1969] EA 696**, where the Court held that a preliminary objection is founded on uncontested facts and, if upheld, may dispose of the suit. 3. In the present case, the Interested Party contends that the Applicant's suit is barred by **Section 41(a)(i) of the Limitation** **of Actions Act** because the suit property is Government land, which is incapable of being acquired by adverse possession. The Applicant, on the other hand, argues that he is not claiming ownership of Government land but seeks recognition of a leasehold interest acquired through adverse possession. 4. From the pleadings, it is not disputed that **Plot NO 12** Nyapera Market is under the administration of the County Government of Busia and that the Applicant has been paying rates to the County Government. 5. The objection therefore turns on the legal effect of **Section 41(a)(i)** of the **Limitation of Actions Act** on the Applicant's claim, rather than on contested facts requiring evidence. 6. Accordingly, the Court is satisfied that the Preliminary Objection raises a pure point of law as it invites the Court to determine, on the basis of the pleadings and the law alone, whether the Applicant's claim is statutorily barred. The first issue is therefore answered in the affirmative. **On whether the Applicant's claim is barred by section 41 (a)(i) of the Limitation of Actions Act, and if so, whether the suit ought to be struck out with costs** 1. **Section 41(a)(i)** of the **Limitation of Actions Act** provides that the **Act** does not enable any person to acquire title or any easement over Government land or land otherwise enjoyed by the Government by adverse possession. 2. This Honourable Court takes note that the effect of this provision is that Government land is expressly excluded from claims founded on adverse possession. 3. In the present case, the Applicant's Originating Summons seeks, inter alia, a declaration that he has acquired the lease over Plot **NO 12** Nyapera Market by adverse possession and an order directing the County Government of Busia to recognize and register his leasehold interest. 4. Although the Applicant submits that he is not claiming ownership of Government land but merely recognition of a leasehold interest, the foundation of his claim remains adverse possession. 5. The Applicant further acknowledges in his pleadings that the suit property is administered by the County Government of Busia and that he has been paying rates to the County Government. 6. The Interested Party has also demonstrated that the letter of allotment issued to the late **EMMANUEL LUKAKHIA MUROMBI** did not confer upon him any proprietary interest or title capable of founding a claim for adverse possession. Rather, the letter of allotment was merely an invitation to apply for a lease upon fulfillment of the stipulated conditions. 7. The material placed before the Court shows that the deceased did not apply for or obtain the lease before his demise. Consequently, no leasehold interest ever crystallized in his favour, and there was therefore no subsisting lease between the County Government of Busia and the estate of the late **EMMANUEL LUKAKHIA MUROMBI** capable of being transferred to, or claimed by, the Applicant. 8. The Court of Appeal in **Wreck Motors Enterprises -v- The Commissioner of Lands & 3 Others [1997] eKLR** held that a letter of allotment, by itself, does not confer title to land and that an allottee acquires an enforceable interest only upon compliance with the conditions contained therein and the subsequent issuance of the grant or lease. 9. The letter of allotment merely confers an inchoate interest which matures into a proprietary interest only upon fulfilment of the conditions stipulated therein. 10. In the circumstances, the Applicant's claim is not only barred by the express provisions of **Section 41(a)(i)** of the **Limitation of Actions Act** but is also untenable for want of a legally recognizable leasehold interest upon which the doctrine of adverse possession could attach. 11. Even assuming that a lease had existed, it would still relate to Government land, which is expressly exempted from acquisition by adverse possession under **Section 41(a)(i)** of the **Act**. **DECLARATION** 1. The Honourable court hereby finds and declares that the Applicant`s claim, being founded on adverse possession in respect of government land, is barred by the provisions of **Section 41 (a)(i)** of the **Limitation of Actions Act**. **FINAL ORDERS** 1. **The Notice of Preliminary Objection dated 20th February 2026 is hereby upheld.** 2. **The Applicant's Originating Summons dated 25th July 2025 is incompetent and is hereby struck out.** 3. **The Applicant shall bear the costs of the Notice of Preliminary Objection and the suit.** **Ruling dated, signed and delivered in open Court on this 30th day of July 2026.** **C. MUGAMBI** **JUDGE** **30TH JULY 2026**