https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4473

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT KAPSABET** **ELCL (OS) E010 OF 2026** **​JOHNAH KIBET LEL....................................................APPLICANT** **​-VERSUS-** **​MARK KIPLAGAT SAMOEI...........................................1ST RESPONDENT** **MAURICE KIPKOECH MITEY……………..……………2ND RESPONDENT** **RULING** 1. This ruling is in respect of the preliminary objection dated 19th May 2026 raised on the instant suit in entirety by the Respondents through Anassi Momanyi and Company Advocates on the following grounds; 2. The Applicant’s claim to the suit parcel of land (***LR No. Nandi/Cheptil/69, the suit land herein***) has been the subject of Eldoret Chief Magistrate’s Court Succession Cause No. 286 of 2018 and is the subject of an appeal in Kapsabet High Court Succession Cause Appeal No. E019 of 2024. 3. The Applicant has consistently held the position that he is on the land as a son to the deceased owner and he cannot competently be allowed to claim the same parcel of land under adverse possession. 4. The suit is an abuse of the process of the Honourable Court. 5. Notably, the applicant through Rotich Langat and Partners Advocates generated the suit by way of an originating summons dated 2nd April 2026 for the determination of questions, inter alia; 6. Whether the Applicant, **Jonah Kibet Lel** has been in open, peaceful, continuous and uninterrupted occupation and use of the portion of the suit land measuring 20 acres. 7. Whether the said occupation by the Applicant has been adverse to the interests of the registered owner and/or the Respondents herein. 8. Whether the Respondents’ rights over the suit land have been extinguished by operation of Law under the Limitation of Actions Act. 9. Simultaneously, the applicant filed an application dated 2nd April 2026 for temporary injunctive and status quo orders in respect of the suit land. On 19th May 2026, this Honourable court having heard Mr. Rotich and Mr. Wainaina learned counsel for the applicant and respondents respectively, allowed the application partially to the extent that there the register and possession of the suit should not be altered pending the outcome of the application. 10. In the Replying Affidavit of twenty paragraphs sworn on 22nd May 2026 by the 1st respondent, the suit generated by way of the originating summons, is opposed. The respondents averred inter alia, that the applicant who has consistently claimed that he was on the suit land as a son of the deceased owner cannot be allowed to claim it by adverse possession. That the claim has been the subject of other cases as stated in paragraph 1 (a) hereinabove. 11. The applicant’s supplementary affidavit sworn on 8th June 2026 is in further opposition to the preliminary objection. He averred in part, that he participated in Eldoret CMC Succession Cause No. 286 of 2018 in the matter of the estate of **Stephen Kimitei Hiego alias Stephen Arap Yego (Deceased-1)** where he applied to substitute his late mother, **Susan Chelagat Yego (Deceased-2)** who died on 29th January 2020 but the respondents’ objection that Deceased-2 was not a wife to Deceased-1, was upheld. That so, the grant of letters of administration was revoked and confirmation of grant did not include the applicant. That the succession court did not recognize the applicant as one of the beneficiaries of the estate of Deceased-1 and the respondents have involved surveyors, subdivided the suit land and engaged in the destruction of his property thereon thus, provoking the instant suit. 12. On 19th May 2026, the court directed that hearing of the preliminary objection be by written submissions. 13. Consequently, learned counsel for the defendants/respondents filed submissions 22nd May 2026 relating to the application and the preliminary objection. Counsel submitted that the applicant has decided to forum shop and termed the application an abuse of the process of the court. Reference was made to section 28 of the Environment and Land Court Act 2015 (2011) and the case of **Independent Electoral and Boundaries Commission (IEBC) vs Maina Kiai & 5 others (2017) eKLR,** to fortify the submissions. 14. Further, learned counsel for the respondents’ filed submissions on 19th June 2026 that the applicant has admitted the correctness of the issues raised in the preliminary objection That the applicant’s conduct is a recipe of chaos and lawlessness. That thus, the suit in entirety be dismissed with costs to the respondents. 15. In the submissions filed on 8th June 2026, learned counsel for the applicant referred to the Originating summons, the preliminary objection, identified four issues including whether the existence of succession proceedings bars the applicant’s adverse claim over the suit land and termed the preliminary objection misconceived, incompetent and does not meet the threshold in **Mukisa Biscuit Manufacturing Company Limited vs West End Distributors Limited (1969) EA 696**. It was submitted that what is being sought in the suit are facts on ownership interests as the succession court dealt with beneficiaries. **Article 162 (2) (b) of the Constitution of Kenya 2010, section 7 of the Civil Procedure Act Chapter 21 Laws of Kenya, Mwangi & another vs Mwangi (1986) eKLR and Public Trustee vs Wandura Ndegwa (1982) eKLR** were cited to buttress the submissions, 16. In the foregone, is the Preliminary Objection sustainable? 17. The Respondents’ assertion is that the instant suit in entirety is the same matter in Kapsabet High Court Succession Cause Appeal No. E019 of 2024. That the said appeal is pending determination. 18. On the other hand, the Applicant’s standpoint is that this matter has never been decided in any other court of law. That what is before the Succession Court is a decision whether or not the applicants are beneficiaries in the Estate of the Deceased and not the ownership interests raised in this suit. 19. It is worth to note that this court is guided by the decision in the case of **Mukisa Biscuit Manufacturing Co. Ltd (supra)** where the Court of Appeal held; “***A preliminary objection consists of a portion….. 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. Moreover, the Court further remarked thus: “***A preliminary objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”*** 1. The jurisdiction of this Honourable Court to exclusively determine claims relating to ownership and interests in land is derived from **Article 162 (2) (b) (supra)** and **section 13 of the Environment and Land Court Act** **2015 (2011).** 2. It is common ground that the suit land being part of the Estate of Deceased-1 has been the subject of Eldoret Chief Magistrate’s Court Succession Cause No. 286 of 2018 and is the subject of an appeal in Kapsabet High Court Succession Cause Appeal No. E019 of 2024. I bear in mind **Mwangi and Public Trustee cases (both supra)** that change of ownership, including transmission through succession, does not interrupt adverse possession. 3. The High Court Succession appeal involves the parties herein. The subject matter therein includes the suit land. The said cause is pending and fixed for submissions on 6th October 2026, 4. In that regard, can the court dismiss the present suit as sought in the preliminary objection? The answer is in the negative as I subscribe to the Court of Appeal decision in **D.T Dobie & Company Ltd vs Joseph Mbaria Muchina & another (1982) eKLR** where it was observed; ‘*No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption…….’* 1. Clearly, the instant suit for adverse possession over the suit land is not hopeless as it discloses a reasonable cause of action**.** However, the preliminary objection pertains to sub judice, a pure point of law as noted in **Mukisa Biscuit case** (supra) hence, the suit calls for stay as the same offends **section 6 of the Civil Procedure Act Chapter 21 Laws of Kenya.** 2. A fortiori, the preliminary objection is sustainable. For the ends of justice, I make the orders infra; 3. This suit generated by an originating summons dated 2nd of April 2026 is hereby stayed pending the determination of Kapsabet High Court Succession Cause Appeal No. E019 of 2024. 4. The register of the suit land reference number **Nandi/Cheptil/69** as well as possession of the same land shall not be altered in terms of sub division, transfer, sale, charge or any manner of disposal and/ or no erection of any permanent structure thereon pending the outcome of this suit. 5. Costs of the preliminary objection be in the cause. 6. It is so ordered. **Dated** and **Delivered** at **Kapsabet** this **15th day of July, 2026.** **HON. G M A ONGONDO** **JUDGE** **In the presence of;** 1. Mr. Moses Rotich learned counsel for the applicant 2. Mr. Walter Kipkorir, Court Assistant