https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2959

Nabule v William (Sued as the legal representative and administrator of the Estate of the Late Nabule Anguche Akute) (Enviromental and Land Originating Summons E019 of 2025) [2026] KEELC 2959 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 2959 (KLR) Republic of Kenya In the Environment and Land Court at Vihiga Enviromental and Land Originating Summons E019 of 2025 E Asati, J May 14, 2026 IN THE MATTER OF THE REGISTERED LAND ACT, CAP 300 (NOW REPEALED & THE LAND REGISTRATION ACT, 2012 AND IN THE MATTER OF THE LIMITATION OF ACTIONS ACT AND IN THE MATTER OF LAND PARCEL NO. WEST BUNYORE/EBUTANYI/1318 Between Jackson Aore Nabule Plaintiff and Sarah Amadi William Defendant Sued as the legal representative and administrator of the Estate of the Late Nabule Anguche Akute Ruling 1.This ruling is in respect of the preliminary objection raised by the defendant vide the notice of preliminary objection dated 6th February 2026. The grounds of the preliminary objection are that: -i.The suit land being ancestral land, the principle of adverse possession does not apply.ii.It is against precedent.iii.There is a pending MC ELC No E072 of 2025 between Sarah William and Jackson Sore Nabule concerning the same parties over the same subject matter. it is therefore sub-judice.iv.The suit is an abuse of the process of the court. 2.Directions were given by the court on 11/3/2026 that the preliminary objection be heard by way of written submissions. Timelines were given within which parties were to file the written submissions. As of the date hereof, none of the parties filed submissions on the preliminary objection. 3.The threshold for a preliminary objection to be sustainable was set in the case of Mukisa Biscuit Manufacturing Co. Ltd – vs- West End Distributors Ltd [1969] EA 696, where it was held that:“…a preliminary objection consists a point of law which has been pleaded, or which 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 the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration.’’The court further held that;“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 has to be ascertained or if what is sought is the exercise of judicial discretion.’’ 4.From the foregoing, a preliminary objection must be based on pure points of law, must arise from the pleadings, may dispose of the suit/case if argued as a pure point of law and must be argued on the assumption that all facts pleaded by the opposite party are correct; it cannot succeed if any fact has to be ascertained; or if what is sought is the exercise of the court’s discretion. 5.The only pleading so far filed is the originating summons. The issues raised, namely, whether or not the land is ancestral land and whether there exists another suit, are matters of evidence, which evidence has not been exhibited and which cannot be ascertained or interrogated through the preliminary objection for ascertainment. 6.The preliminary objection is not sustainable. It is hereby dismissed. Each party to bear its own costs.Orders accordingly. RULING DATED AND SIGNED AT VIHIGA, READ THIS 14TH DAY OF MAY, 2026, VIRTUALLY, THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATIJUDGEIn the presence of;Ajevi - Court Assistant.Alego for the Plaintiff.Obwatinya for the Defendant/Applicant in the PO.