Mulwa & another v Yama (Environment and Land Case E091 of 2025) [2026] KEELC 3189 (KLR) (19 May 2026) (Ruling)

Mulwa & another v Yama (Environment and Land Case E091 of 2025) [2026] KEELC 3189 (KLR) (19 May 2026) (Ruling) Neutral citation: [2026] KEELC 3189 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Environment and Land Case E091 of 2025 FM Njoroge, J May 19, 2026 Between Sospeter Wambua Mulwa 1st Plaintiff Musya Mulwa 2nd Plaintiff and Mohamed Menza Yama Defendant Ruling 1.The Preliminary Objection dated 29th September, 2025 filed by the defendant in the present case is two limbed as follows:i.That the court lacks jurisdiction to hear and determine this matter by dint of section 18(2) of the Land Registration Act No 3 of 2012;ii.That this suit is res judicata Mombasa High Court Miscellaneous Application No 43 Of 2019 – Mohamed Menza Yuma Vs District Land Adjudication Officer Kilifi And Others. 2.The Preliminary Objection was disposed of by way of written submissions. 3.The gist of the objector’s submissions and further submissions on res judicata is that the defendant obtained his land parcel following a court order in Mombasa High Court Miscellaneaous Application No 43 Of 2019 – Mohamed Menza Yuma Vs District Land Adjudication Officer Kilifi and others and the plaintiffs herein have failed to appeal that order; instead, they have filed the present case. It is stated that the issue of encroachment should have been raised in that case, and no new and unrelated issue has been brought in this suit. 4.Regarding the first limb of the Preliminary Objection, the defendant states that the parties are bound by the contents of their own pleadings. It is stated that at paragraph 5 of the plaint, the plaintiffs claim plot no Kilifi/Madzimbani Mitangoni/73 which the defendant states he has no interest in in his defence. It is averred that the defendant instead claims plot noKilifi/Madzimbani Mitangoni/ 185 which is contiguous to plot no Kilifi/Madzimbani Mitangoni/73. Each party therefore claims their own plot. None claims the others’ plot. Consequently, avers the defendant, all that can be between them is a dispute regarding the proper boundary between the two plots. and the dispute can be resolved under Section 18 of the Land Registration Act under the mandate of the Land Registrar. Citing the case of Lewa Vs Board of Management Katikirieni Primary School 2024 KEELC 7217 KLR and George Kamau Macharia & Dexka Limited 2019 eKLR, the defendant avers that the court is not an expert at establishing boundaries. 5.The defendant sums up by pleading with this court to give effect to the intention of the provisions of Section 7 CPA and Section 18 LRA. 6.The plaintiff’s counsel on the other hand stated that the defendant has trespassed on their portion of land and fenced off 0.771 ha thereof. The plaintiff in his claim wants the defendant to cease trespass and to remove the fence and any structures that he has erected on the portion. Citing Mukisa Biscuits Manufacturing Company Limited Vs West End Distributors Ltd 1969 EA 696, counsel submits that the application before the court seeks injunction against the defendant and a Preliminary Objection should not be raised where it is a discretionary remedy that is being sought. Further, that whether or not the dispute is a boundary dispute is a question of fact to be determined on the giving of evidence. Consequently, the matters raised by the defendant do not afford a Preliminary Objection. 7.As regards res judicata, the defendant’s counsel submitted that the court has not been informed as to what was the subject matter of Mombasa High Court Miscellaneous Application No 43 Of 2019 – Mohamed Menza Yuma Vs District Land Adjudication Officer Kilifi and Others, and whether the plaintiffs were party to it. (I have however noted that the defendant’s submission is that the plaintiffs herein made an application to be joined to that suit and the application was declined by court.) The defendant’s counsel therefore submits that there is completely no material before the court upon which it can premise its finding of res judicata. The defendants counsel submitted that the Preliminary Objection ought to be overruled with costs to the plaintiffs. Analysis And Determination. 8.What is raised separately by the two limbs of the Preliminary Objection in this case is the primordial issue of jurisdiction. 9.The case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1underscores the principle that jurisdiction is fundamental and must be determined at the earliest opportunity and that a court without jurisdiction must "down its tools" and take no further steps in the matter. 10.Therefore, when the issue of jurisdiction is raised as a Preliminary issue, the court will have to leave all the other issues and address it first. It is by doing that that the court will avoid wasting much judicial time only to lay down its tools later on in the proceedings. 11.In the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, it was 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. Examples are an Objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … 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’.” 12.In Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) the court stated as follows regarding jurisdiction:“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.” 13.However even when jurisdiction must be determined at the earliest, there are situations in which the issue can not be raised without the ascertainment of some facts and therefore in such cases it can not be raised as a Preliminary Objection, and that is what this court perceives the plaintiffs to be putting forward in their submissions in the present case. 14.An examination of the pleadings may disclose whether the Preliminary Objection meets the threshold of a Preliminary Objection as defined in Mukisa (supra). 15.In the plaint the plaintiff has sought the following orders of this court:a.An injunction against any activities of the defendant on the suit premises known as Kilifi/Madzimbani Mitangoni/73;b.A mandatory injunction compelling the defendant to remove the fence he has constructed on the suit premises;c.General damages;d.Costs. 16.In the body of the plaint, the plaintiffs have stated that the defendant trespassed onto the suit property of which the plaintiffs are registered owners, that depriving them of the use and enjoyment thereof. 17.On his part in his defence, the defendant states that he has no knowledge of and makes no admission of the allegations that the plaintiffs are the owners of Kilifi/Madzimbani Mitangoni/73; he is bound by his pleading in accordance with the decision in Dakianga Distributors (K) Ltd V Kenya Seed Company Limited 2015 eKLR and Independent Electoral & Boundaries Commission & Another V Stephen Mutinda Mule & 3 Others 2014 eKLR Civil Appeal No 219 of 2013; 18.In the Dakianga case (supra) it was stated as follows:“A useful discussion on the importance of pleadings is to be found in Bullen and Leake and Jacob's Precedents of Pleadings, 12th Edition, London, Sweet & Maxwell (The Common Law Library No. 5) where the learned authors declare:-“The system of pleadings operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the court will be called upon to adjudicate between them. It thus serves the two-fold purposes of informing each party what is the case of the opposite party which he will have to meet before and at the trial, and at the same time informing the court what are the issues between the parties which will govern the interlocutory proceedings before the trial and which the court will have to determine at the trial.”Sir Jack Jacob in an article entitled “The Present Importance of Pleadings” published in (1960) Current Legal Problems and which article was quoted with approval by the Supreme Court of Malawi in Malawi Railways Limited v Nyasulu [1998] MWSC 3 states of the importance of pleadings:“As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings... for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice...In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.”” 19.In the Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR) it was held as follows:“The Appellants contention is that the learned Judge overstepped her mandate in crafting a new issue not brought by the parties and basing it to nullify the 1st Respondent’s election thereby essentially assisting the Petitioner in an impermissible manner. The 1st Respondent in submissions filed in this Court supported this argument by the Appellant and cited to us two decisions of the Nigerian Supreme Court. In the first, Adetoun Oladeji (Nig) Ltd v Nigeria Breweries Plc SC 91/2002, Judge Pius Aderemi JSC expressed himself, and we would readily agree, as follows;“..it is now a very trite principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded.”” 20.The defendant thus must be taken to be denying that that the plaintiffs are the owners of Kilifi/Madzimbani Mitangoni/73, hence that is a fact that has to be ascertained by way of evidence. He also denies that he has trespassed onto the said parcel of land. It thus behoves the plaintiffs to be wary of that case now that it has been raised and to ensure they prove it at the hearing failure to which their claim may be defeated. However, in the circumstances, and going by the rule in Mukisa (supra) where first the ownership of the plot the plaintiffs claim to own and which is the subject of the claim of encroachment by the defendant has to be established in order to grant the plaintiff a footing in this case, the Preliminary Objection under Section 18 of the Land Registration Act is totally unmerited. 21.As regards the claim of res judicata, in John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) the Supreme Court stated as follows:“ 81.We reaffirm our position as in the Muiri Coffee case that the doctrine of res judicata is based on the principle of finality which is a matter of public policy. The principle of finality is one of the pillars upon which our judicial system is founded and the doctrine of res judicata prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively. To further bolster our position we borrow from the decision from India in Karam Chand another v Union Of India and others on 24 April, 2014 where it was restated the principles upon which the doctrine of res judicata is founded as follows: 29.......it is clear that the rule of res judicata is mandatory in its application and should be invoked in the interest of public policy and finality. The matter which have actually been decided would also apply to the matters which have been impliedly and constructively decided by the court. These principles are to be applied to preserve the doctrine of finality rather than frustrate the same. The doctrine of res judicata is the combined result of public policy so as to prevent repeated taxing of a person to litigation. It is primarily founded on the following three maxims:(1)nemo debet bis vexari pro una et eadem causa: no man should be vexed twice for the same cause.(2)interest republicae ut sit finis litium: it is in the interest of the State that there should be an end to a litigation; and(3)res judicata pro veritate occipitur: a judicial decision must be accepted as correct. .....The doctrine of res judicata is conceived not only in the larger public interest which requires that all litigation must sooner than later come to an end but is also founded on equity, justice and good conscience.” 22.In the case Margaret Nyiha Gatambia & 2 others v Peninah Ngechi Njaaga & 3 others [2019] KEELC 795 (KLR) it was stated as follows:“Further this Preliminary Objection as raised does not stem from the pleadings but it requires the Court to call for ascertainment of facts. Though Section 7 of the Civil Procedure Act deal with the issue of Res judicata, it is evident that the said issue of Res judicata cannot be raised in a Preliminary Objection. As was held in the case of George Kama Kimani & 4 Others …Vs…County Government of Trans-Nzoia (supra) the best way to raise the issue of res judicata is by way of Notice of Motion where pleadings would be annexed to allow the Court consider whether the issues in the previous suit are similar to the issues in the suit being in issue. Further the issue as to whether or not the pleadings were drawn by an unqualified person also has to call for ascertainment of facts for this Court to come into a conclusion.” 23.In the present case, the defendant has expressly stated that the plaintiffs’ application to be joined to that suit was declined. There is no basis on which the defendant can now turn around and state that the issues raised by the plaintiffs in the present suit should have been raised in the former suit while he admits that they were not parties. The plaintiff’s counsel has also correctly pointed out that there is practically no material regarding that case that has been placed before the court in order for it to be able to make a determination based on the res judicata doctrine and the reasoning behind the holding in Margaret Nyiha Gatambia (supra) thus applies. Consequently, the foregoing is that the Objection of res judicata therefore lacks merit and the same must be rejected. 24.The upshot of the foregoing is that both limbs of the defendant’s Objection lack merit and the Preliminary Objection is dismissed as a whole. 25.The present suit shall be mentioned on 19th June 2026 for pretrials. DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 19TH DAY OF MAY 2026.MWANGI NJOROGEJUDGE, ELC, MALINDI.