https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3642

**REPUBLIC OF KENYA** **IN THE** **ENVIRONMENT AND LAND COURT AT NYAMIRA** **ELCLA No. E002 OF 2026** **BETWEEN** **JONES ONDIMU ABAYA and SALOME ABAYA (Suing** **as Legal Representatives of the Estate of the late** **ABAYA ONGIGE ……………………………………………….…... APPELLANT** **AND** **MAKORI ONGERA ........................................................... 1ST RESPONDENT** **SABASI ANYUNA ............................................................ 2ND RESPONDENT** **JOSEPH ABAYA OTISO ................................................... 3RD RESPONDENT** **THE LAND REGISTRAR, NYAMIRA ................................. 4TH RESPONDENT** ***(Being an appeal from the judgment and decree of the Chief Magistrate’s Court at Nyamira*** ***(******C I Agutu, Senior Resident Magistrate) delivered on 18th March 2026 in Nyamira MCELC No. 58 of 2019)*** **RULING** 1. Dissatisfied with judgment delivered by the Subordinate Court (C.I Agutu, Principal Magistrate) on 18th March 2026, the Appellants filed this appeal on 21st March 2026 through Memorandum of Appeal dated 18th March 2026. In the impugned decision, the Learned Magistrate struck out the Appellants’ case for want of jurisdiction. 2. The following are the grounds of appeal as listed on the face of the Memorandum of Appeal: 3. *The learned trial magistrate misdirected herself in holding that the respondents had claimed ownership of suit land parcels by adverse possession notwithstanding that the appellant had filed suit seeking nullification of titles on account of fraud and illegalities.* 4. *The learned trial magistrate erred by holding that she had no jurisdiction to determine the issue of adverse possession when the plaintiff had in fact (sic).* 5. *The decision of the learned trial magistrate to strike out the appellant's suit on account of a matter not raised by the plaintiff himself is a miscarriage of justice.* 6. *The learned trial magistrate erred by failing to appreciate the real issues in controversy and to determine the same.* 7. *The learned trial magistrate failed to appreciate that the respondents were purported registered proprietors of various parcels of land and could not therefore, in the same breath, validly claim to have acquired ownership by adverse possession.* 8. *The learned trial magistrate's decision is an affront to section 50(1) of the Constitution of Kenya*. 9. Three days after filing the appeal, the Appellants filed Notice of Motion dated 20th March 2026, seeking the following orders: 10. *This application be certified urgent and service thereof be dispensed with in the first instance and the same be heard ex parte for the grant of an order in terms prayer (b) hereunder.* 11. *Pending inter partes hearing of this application there be and is hereby issued an order of inhibition to inhibit any or any further dealings and/or dispositions at the instance of the respondents, whether jointly and/or severally, their agents, derivatives or any person or entity acting under their name(s) and/or title(s) whether by way of sale, transfer, pledge, charge, lien or by any other means whatsoever with respect to those parcels of land more specifically known as land parcels LR Nos. West Mugirango/Bosamaro/1141, 1391, 1245, 1246, 1145, 1223, 1146, 1222, 1221, 1223 and 1224.* 12. *Pending inter partes hearing of Nyamira ELC Land Appeal No. E002 of 2026 there be and is hereby issued an order of inhibition to inhibit any or any further dealings and/or dispositions at the instance of the respondents, whether jointly and/or severally, their agents, derivatives or any person or entity acting under their name(s) and/or title(s) whether by way of sale, transfer, pledge, charge, lien or by any other means whatsoever with respect to those parcels of land more specifically known as land parcels L.R. Nos. West Mugirango/Bosamaro/1141, 1391, 1245, 1246, 1145, 1223, 1146, 1222, 1221, 1223 and 1224.* 13. *Costs hereof do abide the outcome of the Appeal*. 14. The Application is supported by an affidavit sworn by Jones Ondimu Abaya on 20th March 2026, one of the Appellants. He deposed that by further amended plaint dated 29th August 2022, the Appellants sought nullification of land parcel numbers West Mugirango/Bosamaro/1141, 1245, 1246, 1145, 1146, 1221, 1222, 1223, 1224 and 1391 (the suit properties) on grounds of fraud and that the Subordinate Court delivered judgement on 18th March 2026 dismissing the Appellants’ suit on the ground that it had no jurisdiction to determine the issue of adverse possession. 15. He further deposed that the suit properties are capable of being disposed of and that should that happen, this appeal will be rendered nugatory. He added that it is imperative that the suit properties be preserved through an order of inhibition pending determination of this appeal. 16. The First, Second and Third Respondents responded to the appeal and the application through Notice of Preliminary Objection dated 30th March 2026 and a Replying Affidavit sworn on 15th April 2026 by Joseph Abaya Otiso, the Third Respondent. 17. The Preliminary Objection raises the following grounds: 18. *That the Memorandum of Appeal and the Application herein were drawn, filed and/or executed by an advocate who did not hold a valid and current Practising Certificate at the material time.* 19. *That pursuant to the provisions of Sections 9 and 34 of the Advocates Act, Cap 16 Laws of Kenya, an advocate who does not hold a current Practicing Certificate is not qualified to act as such, and any documents drawn or filed by such an advocate are incompetent, null and void ab initio.* 20. *That the Memorandum of Appeal and the Application herein are therefore incurably defective, incompetent and bad in law.* 21. *That the entire Appeal and the Application are fatally defective and ought to be struck out with costs to the 1st, 2nd and 3rd Respondents.* 22. *That this Honourable Court lacks jurisdiction to entertain an Appeal and/or Application founded on pleadings drawn and filed by an unqualified person within the meaning of the Advocates Act*. 23. Joseph Abaya Otiso deposed in the Replying Affidavit that the Appellants’ contention that the appeal had high chances of success and would be rendered nugatory were speculative and that the Appellants had not demonstrated that the Respondents intended to dispose of the suit properties. He added that the Appellants had not demonstrated that they would suffer substantial loss and that granting inhibition would restrict the Respondents’ rights. 24. The Appellants filed a Supplementary Affidavit sworn on 8th May 2026 by Jones Ondimu Abaya. He deposed that Mr Nyamurongi who was the proprietor of Nyamurongi & Company Advocates had a practicing certificate for the year 2026 and annexed a copy search engine results from the website of the Law Society of Kenya. 25. This ruling is in respect of the application and the Preliminary Objection, both of which were canvassed through written submissions. The Appellants/Applicants filed submissions dated 8th May 2026 while the First, Second and Third Respondent filed submissions dated 15th April 2026. 26. The Fourth Respondent opted not to participate in the hearing of the application and the Preliminary Objection, on the ground that they did not affect him. 27. I have carefully considered the application, the Preliminary Objection and the submissions. The issues that arise for determination are whether the Court has jurisdiction to hear and determine the appeal and whether an order of inhibition should issue. 28. The First, Second and Third Respondents have contended that the Memorandum of Appeal and the application were drawn by an advocate without a valid practicing certificate and that consequently, the Court lacks jurisdiction. 29. As the Courts have repeatedly held, jurisdiction is everything. It is the entry point in any matter that a Court is called upon to determine. It is the very life and soul of any proceedings without which the proceedings come to a certain end. See **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR** and **Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR**. 30. The avenue through which the First, Second and Third Respondents have sought to oust the Court’s jurisdiction is through the Preliminary Objection. Consequently, I have to commence analysis on the issue by first determining whether there is, in the first place, a valid Preliminary Objection. 31. A preliminary objection consists of a pure point of law which is pleaded, or which arises clearly from the pleadings, and which if successful can dispose of the suit or proceedings in respect of which it is brought. See **Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd** (**1969) EA 696**. Essentially, a preliminary objection raises an issue of jurisdiction. 32. For a preliminary objection to be valid, it must raise a pure point of law which is argued on the assumption that all the facts pleaded by the party against whom it is raised are correct. A point cannot be raised as a preliminary objection if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. See **Oraro v Mbaja [2005] eKLR**. 33. At the core of the preliminary objection herein is the assertion that “*the Memorandum of Appeal and the Application herein were drawn, filed and/or executed by an advocate who did not hold a valid and current Practising Certificate at the material time*.” To establish the veracity of those claims, the Court would need to receive and consider evidence. A matter that needs to be established through evidence falls outside the four walls of a valid preliminary objection. 34. There is one other reason why the objection herein is not valid. Even if it were established that the Appellants’ advocate did not have a valid practicing certificate as of the time of drawing and filing the Memorandum of Appeal and the application, that alone would not be fatal to the appeal. The Court has discretion on whether to accept such pleadings. In that regard, the Supreme Court held as follows in **National Bank of Kenya Ltd v Anaj Warehousing Ltd [2015] KESC 4 (KLR)**: ***64. The Appellate Court made the assumption that, since the Law Society of Kenya did publish annually a list of names of duly-licensed advocates, the public would know if a particular advocate had not taken out a practising certificate. How far does this assumption represent the reality, for the typical client seeking a particular service, and finds a well-known advocate conducting his work from decent chambers? We would take judicial notice that even the Judges in Court, can hardly keep up with the records of advocates who have duly renewed their practice certificates. It is the Law Society of Kenya which is best placed to know which advocate has or has not taken out a practising certificate.*** ***…*** ***68. The facts of this case, and its clear merits, lead us to a finding and the proper direction in law, that, no instrument or document of conveyance becomes invalid under Section 34(1)(a) of the Advocates Act, only by dint of its having been prepared by an advocate who at the time was not holding a current practising certificate. The contrary effect is that documents prepared by other categories of unqualified persons, such as non-advocates, or advocates whose names have been struck off the roll of advocates, shall be void for all purposes***. 1. To the extent that there is need to receive and consider evidence to resolve the issues raised in the objection and further considering that the Court has discretion on whether to accept pleadings drawn by advocate without a valid practicing certificate, I find that the preliminary objection herein is not valid. I dismiss it. 2. I now turn to the question of whether an order of inhibition should issue pending hearing and determination of this appeal. 3. An inhibition is an order made under **Section 68** of the **Land Registration Act**. The section provides as follows: ***(1) The court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge.*** ***(2) A copy of the inhibition under the seal of the court, with particulars of the land, lease or charge affected, shall be sent to the Registrar, who shall register it in the appropriate register.*** ***(3) An inhibition shall not bind or affect the land, lease or charge until it has been registered***. 1. Pursuant to **Section 69** of the **Land Registration Act**, the effect of an order of inhibition is that as long as it remains registered, any instrument that is inconsistent with it shall not be registered. In other words, an inhibition operates within the register of a particular property by barring registration of instruments that run counter to it. Thus, the inhibition itself must be registered. It is unlike an injunction which operates simply upon being served or upon affected parties being aware of it. 2. To the extent that the inhibition sought herein is for preserving the suit property pending hearing and determination of this appeal, the principles that govern it are similar to those that apply to stay pending appeal or injunction pending appeal. 3. The jurisdiction to grant stay, injunction or inhibition pending appeal is guided by **Order 42 rule 6 (2)** of the **Civil Procedure Rules**. Consequently, an applicant seeking such an order must demonstrate that substantial loss will result to him if inhibition is not granted, and that the application has been made without unreasonable delay. Such an applicant is further required to give such security as the court may order for the due performance of the decree. See **Kenya Power & Lighting Co. Ltd v Kigaita Ngare Unduthu & 36 others [2020] eKLR** and **Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR**. 4. In their suit in the Subordinate Court, the Appellants sought nullification of the Respondents’ titles in respect of the suit properties on grounds of fraud. They have contended that the appeal will be rendered nugatory if the suit properties are disposed of. The inhibition is to serve the purpose of preserving the suit properties. 5. I am persuaded that the Appellants stand to suffer substantial if inhibition is not granted. Further transactions on the suit properties may remove the substratum not only of the appeal but of the suit before the Subordinate Court. I will limit the life of the inhibition order, with a view to encouraging an early hearing and determination of this appeal. 6. In view of the foregoing, I make the following orders: 7. **Preliminary Objection dated 30th March 2026 is dismissed.** 8. **Pending the hearing and determination of this appeal, I grant an order of inhibition to inhibit any transfer, pledge, charge, lien or any other disposition whatsoever at the instance of the Respondents, whether jointly and/or severally, their agents, derivatives or any person or entity acting under their name(s) and/or title(s) with respect to those parcels of land known as L.R. Nos. West Mugirango/Bosamaro/1141, 1391, 1245, 1246, 1145, 1223, 1146, 1222, 1221 and 1224.** 9. **The inhibition order shall, unless extended by the Court, remain in force for a period of only twelve months from the date of this ruling or until this appeal is determined, whichever occurs first. Consequently, parties are reminded to expeditiously prosecute this appeal.** 10. **Costs shall abide the outcome of the appeal**. **Dated, signed, and delivered at Nyamira, this 16th day of June 2026.** **D. O. OHUNGO** **JUDGE** Delivered in the presence of: Ms Kebungo for the Appellant Mr Onsembe for the 1st to 3rd Respondents Mr Ondima holding brief for Mr Ndiritu for the 4th Respondent Court Assistant: B Kerubo