Ngecha Mbari Ya Thaara Co. Ltd & 3 others v Langat & 5 others (Environment and Land Case E003 of 2024) [2026] KEELC 3880 (KLR) (Environment and Land) (25 June 2026) (Ruling)

Ngecha Mbari Ya Thaara Co. Ltd & 3 others v Langat & 5 others (Environment and Land Case E003 of 2024) [2026] KEELC 3880 (KLR) (Environment and Land) (25 June 2026) (Ruling) Neutral citation: [2026] KEELC 3880 (KLR) Republic of Kenya In the Environment and Land Court at Naivasha Environment and Land Environment and Land Case E003 of 2024 MC Oundo, J June 25, 2026 Between Ngecha Mbari Ya Thaara Co. Ltd 1st Plaintiff David Kahuria Mbugua 2nd Plaintiff Margaret Wanjiru Kahuria 3rd Plaintiff Wilfred Benson Mbugua 4th Plaintiff and Robert Langat 1st Defendant Jane Langat 2nd Defendant William Koonyo 3rd Defendant Apollo Ojode 4th Defendant Nicholas Ayugi 5th Defendant Agricultural Dvt Corporation 6th Defendant Ruling 1.In a Plaint dated the 19th February 2024, the Plaintiffs sought the Court to enter judgment against the Defendants jointly and severally for a permanent order stopping them, their agents, servants, or representatives from entering, trespassing, subdividing, selling, transferring, evicting, or dealing with the land parcels LR No. 28068/31, 28068/32, 28068/33, and 28068/34 located at ADC Ndabibi Farm. They also sought for a formal declaration that they (Plaintiffs) are the lawful and bona fide owners of the four specified parcels of land, each measuring approximately 20 acres, and for an order directing the Officer Commanding Station (OCS) of Kongoni Police Station to enforce the permanent injunction. Lastly, they sought costs and other remedies that the Court considers fair and just. 2.In response, while the 1st and 2nd Defendants denied the Plaintiffs' ownership of the suit parcels of land, the 1st Defendant, in his counterclaim, laid claim to being the lawful owner and allottee of land parcels L.R. Nos. 28068/30, 28068/32, 28068/33, and 28068/34, stating that he was officially allocated the land by the 6th Defendant via an Allotment Letter dated 4th April, 1996, that he had fully paid for it, and that he holds it free of any outstanding dues or encumbrances. They accused the Plaintiffs of illegal trespass, interference, and attempting to claim the land through fraud and irregular documentation, specifically noting that the Plaintiffs' transfer documents had visible physical alterations, were undated, and lacked the proper signatures of the transferor. They further noted that the stamp duty paid, based on Ksh 1.5 million, did not match the stated property valuation of Ksh 1.8 million. They further alleged that the Plaintiffs had failed to provide original allotment letters, proof of payment, or any official registry records evidencing a genuine transaction with the 6th Defendant, and that they had failed to disclose the identities or authority of the individuals who allegedly executed the transfer on behalf of the 6th Defendant. They further alleged that the Plaintiffs' unlawful occupation and threats had caused them financial loss, damage, and mental anguish. They therefore sought for the court to dismiss the Plaintiffs' case and enter judgment in their favour for a formal declaration that the 1st Defendant is the lawful owner of the four specified land parcels, and thereafter issue an order permanently blocking the Plaintiffs and their agents from entering, trespassing, cultivating, or interfering with the land. They further sought an order to evict the Plaintiffs and anyone claiming under them from the property, and, lastly, an award of general damages for trespass, plus payment of all legal costs of the suit and counterclaim. 3.The Plaintiffs filed a preliminary objection to the counterclaim, seeking the court to reject or strike it out on three key legal grounds: that the Counterclaim violates the Limitation of Actions Act because it was filed nearly thirty (30) years after the alleged cause of action arose, making it too late to be legally pursued; that the Counterclaim lacks legal merit or a basis in law because it improperly attempted to challenge the historical acquisition and transfer of the suit properties from previous owners; and third, that the Counterclaim had introduced a completely different, unrelated, and inconsistent claim that did not belong to this case because under Order 7 Rule 12 of the Civil Procedure Rules (2022), the Defendants should have filed a separate lawsuit rather than attaching their claim to the Plaintiffs’ suit. 4.In a Replying Affidavit sworn by Joel Kimutai Bosek, Advocate for the 1st and 2nd Defendants, in response to the Plaintiffs' Preliminary Objection, he deponed that the Counterclaim was not Time-Barred as per the Limitation of Actions because the Plaintiffs' trespass and occupation of the land are recent and continuous, meaning the legal cause of action is ongoing. 5.The Counterclaim sought a declaration of ownership and challenged the validity of a title allegedly obtained through fraud, which goes beyond a simple land recovery claim. That determining when the time limit began to run depended on contested facts, meaning it cannot be dismissed out of hand as a strict point of law. 6.He further deponed that both the lawsuit and the counterclaim concerned the exact same land parcels, being L.R. Nos. 28068/30, 32, 33, and 34, and it was because the Plaintiffs’ ownership of the land was the issue, the Defendants’ counterclaim for ownership, eviction, and trespass was a direct and necessary response, not a separate or inconsistent claim. The Plaintiff’s objection was defective because the dispute involved heavily contested facts, documents, and evidence. Further, in seeking to strike out a Defence and Counterclaim, the Plaintiffs were required by the Civil Procedure Rules to file a formal application supported by evidence, which they failed to do. 7.In conclusion, he deponed that the Plaintiffs’ objection was procedurally defective, groundless, and an abuse of the court process, meant to avoid a trial on the merits and should be dismissed so the case can be heard fully. 8.The Preliminary objection was disposed of through written submissions herein, summarised. 9.The 1st and 2nd Defendants, opposing the Plaintiffs' Preliminary Objection, framed their issues for determination as follows:i.Whether the Preliminary Objection meets the legal threshold.ii.Whether the Counterclaim is statute-barred.iii.Whether the Counterclaim raises triable issues.iv.Whether the preliminary objection is procedurally defective.v.Whether the Preliminary Objection is procedurally proper. 10.The Defendants argued that a valid Preliminary Objection must deal strictly with pure points of law. Because this dispute involves heavily contested facts, such as when the cause of action started, the validity of land titles, and allegations of fraud, it could not be resolved through a summary objection. 11.They contended that the Counterclaim was not time-barred, stating that limitation periods for claims involving fraud only began running upon the discovery of the fraud. The Plaintiffs’ trespass was continuous and ongoing, hence creating a fresh legal cause of action every single day. The case involved a serious clash over land ownership, competing titles, and trespass, wherein landmark principles dictate that if a pleading raises even a single triable issue, it cannot be struck out without a full trial. To strike out a Defence and Counterclaim, the Civil Procedure Rules required a party to file a formal application supported by evidence. The Plaintiffs improperly used a Preliminary Objection as a shortcut, which constitutes an abuse of the court process. 12.That the relevance of the counterclaim was that it addresses the exact same land parcels as L.R. Nos. 28068/30, 32, 33, and 34 and since the Plaintiffs sued for ownership, they (Defendants) have every right to file a counterclaim to fully resolve the entire dispute at once. They placed reliance on the decision in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd (1969) EA 696, where the Court of Appeal defined the strict limits of a Preliminary Objection, ruling that it must consist only of a pure point of law (e.g., a clear lack of court jurisdiction or an undisputed limitation of time) arising directly from the pleadings. That where the court was required to investigate or hear evidence on disputed facts, it would not be a valid Preliminary Objection. 13.They concluded by arguing that the Plaintiffs’ objection was legally incompetent, procedurally defective, and an attempt to evade substantive justice, and the same ought to be dismissed with costs so that the case can proceed to a full trial on its merits. 14.The Plaintiffs’ submissions, on the other hand, urged the Court to strike out the Defendants’ Counterclaim based on three primary legal arguments:i.The Counterclaim offends the provisions of the Limitation of Actions Act, the suit being filed almost thirty (30) years after the cause of action arose.ii.The Counterclaim is frivolous, unmerited and without basis as it seeks to introduce a Counterclaim challenging the acquisition and transfer of the suit properties from the previous owners.iii.The Defence and Counterclaim seeks to introduce an entirely different and/or inconsistent cause of action which is incompatible with the Plaintiffs' cause of action and ought to be pursued as a separate suit contrary to Order 7 Rule 12 of the Civil Procedure Rules 2022 15.The Plaintiffs argued that according to the Defendants' own documents, their alleged right to the land arose in 1996, and therefore, because this was nearly 30 years ago, it vastly exceeds the legal time limits allowed to claim land ownership. They relied on the provisions of Section 7 of the Limitation of Actions Act (Cap 22), which dictates that an action to recover land cannot be brought after twelve (12) years from the date the right of action first accrued, stating that since the Defendants’ claim dated back to 1996, their 12-year window expired in 2008. 16.They submitted that the Counterclaim introduced a completely different, inconsistent dispute that does not belong in this case, stating that while they (Plaintiffs) sought an injunction to stop the ongoing encroachment, the Defendants had improperly tried to introduce a historical ownership dispute. 17.They pointed out that the Defendants were basing their entire ownership claim strictly on allotment letters rather than proper title documentation. They relied on the provisions of Order 7, Rule 12 of the Civil Procedure Rules (2022), which gives the Court the discretion to exclude a counterclaim where a Plaintiff shows that the claim raised by the defendant cannot or should not be fairly disposed of within the current lawsuit, meaning it ought to be pursued as an entirely separate case. 18.In conclusion, the Plaintiffs submited that the Counterclaim is frivolous, legally stale, and procedurally incompatible with their suit seeking that the court allow their application and strike out the Counterclaim with costs. Determination. 19.I have given due consideration to the preliminary objection herein raised by the Plaintiffs to the 1st Defendant’s counterclaim, the response, the rival arguments and the authorities cited as well as the applicable law, wherein I find that the Plaintiffs seek to attack the jurisdiction of the court to try the 1st Defendant’s counterclaim for the reason that that it violates the Limitation of Actions Act because it was filed nearly thirty (30) years after the alleged cause of action arose; that the Counterclaim lacks legal merit or a basis in law because it improperly attempted to challenge the historical acquisition and transfer of the suit properties from previous owners; and third, that the Counterclaim had introduced a completely different, unrelated, and inconsistent claim that did not belong to this case rather than the Defendants filing a separate lawsuit. 20.The Defendants, on the other hand, argued that the Plaintiffs' objection was procedurally defective, groundless, and an abuse of the court process meant to avoid a trial on the merits and that it should be dismissed to pave way for the case to be heard fully. 21.I find the issue arising for determination as being;i.Whether the Plaintiffs' Preliminary Objection meets the strict legal threshold. 22.In the precedent-setting case of Mukisa Biscuit Manufacturing Co Ltd –vs West End Distributors (1969) EA 696, the relevant principles on Preliminary Objections were set 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.’’The often-quoted statement from the judgment by Sir Charles Newbold P. is:“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." 23.It is thus clear that a Preliminary Objection must be on pure points of law and not a mixed question of fact and law, wherein, if argued on the assumption that all facts pleaded by the other side are correct, it is capable of disposing of the suit or application entirely. 24.It is also trite that a question of limitation touches on the jurisdiction of the court, wherein if a matter was prematurely filed, the court would lack jurisdiction to entertain it. 25.Turning to the matter at hand, from the pleadings filed before the court, it is clear that several facts are contested by the parties herein, whereas the Plaintiffs argue that because the Defendants' allotment letter is dated 1996, the 12-year window to claim land expired in 2008. However, the Defendants have pleaded two major legal exceptions, being fraud and continuing trespass. Under Section 26 of the Limitation of Actions Act, time does not begin to run in fraud cases until the fraud is discovered, whereas under tort law, a continuing trespass creates a fresh cause of action daily. Secondly, to determine when the clock actually started running, the court cannot just look at the 1996 date. It must hear evidence to find out when the alleged fraud was discovered and whether an ongoing trespass exists. These are deeply contested facts. 26.Secondly, pleading that the Counterclaim is frivolous, unmerited, because it challenges historical transfers, is a question of substance and evidence, not a pure point of law, because the court would have to examine the Defendants’ 1996 allotment letters, payment receipts, and registry records, which are issues of evidence to which a court cannot address during a Preliminary Objection. 27.Lastly, on the ground that the Counterclaim introduces an incompatible cause of action, Order 7 Rule 12 of the Civil Procedure Rules allows a court to exclude a counterclaim if it cannot be conveniently disposed of in the same suit. The Plaintiffs claim their suit seeks an injunction, while the counterclaim concerns historical ownership where both parties lay claim to the exact same parcels of land LR No. 28068/31-34. Deciding whether a counterclaim is incompatible or inconvenient requires judicial discretion based on the factual overlap of the cases. Furthermore, Order 7 Rule 12 explicitly states that this should be brought by way of an application to exclude, rather than by a summary Preliminary Objection. 28.It is trite that where a party seeks to strike out a pleading because it is time-barred, frivolous, or an abuse of court process, the proper mechanism is filing a Chamber Summons or Notice of Motion Application under Order 2 Rule 15 of the Civil Procedure Rules. This requires an affidavit and allows both sides to exhibit documents. By using a Preliminary Objection, the Plaintiffs are asking the court to strike out the Counterclaim without a formal application or supporting evidence. 29.I find that whereas the Plaintiffs’ objection raises serious legal questions, particularly regarding the 30-year delay since 1996, these questions are inextricably intertwined with disputed facts that require calling witnesses or examining evidence. The Plaintiff’s Preliminary Objection seeking dismissal of the Defendants' counterclaim is procedurally defective because it rests on disputed facts that require an evaluation of the evidence. The same is hereby dismissed with costs. 30.Parties shall comply with pre-trial directions within 21 days in preparation for the hearing of the main suit. DATED AND DELIVERED VIA MICROSOFT TEAMS AT NAIVASHA THIS 25TH DAY OF JUNE 2026.M.C. OUNDOENVIRONMENT & LAND COURT– JUDGE