https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4800

**REPUBLIC OF KENYA** **IN ENVIRONMENT AND LAND COURT AT MIGORI** **ELC SUIT NO. E502 OF 2025 [O.S)** **ANASTASIA ATIENO ODONGO............1ST PLAINTIFF/RESPONDENT** **CORNEL WASONGA ODONGO............2ND PLAINTIFF/RESPONDENT** **PETERLIS OMONDI ODONGO.............3RD PLAINTIFF/RESPONDENT** **JOSEPH ODHIAMBO CHIRO...............4TH PLAINTIFF/RESPONDENT** **MICHAEL OPIYO.................................5TH PLAINTIFF/RESPONDENT** **ISAIAH ODEROA................................6TH PLAINTIFF /RESPONDENT** **-VERSUS-** **FREDRICK KENNEDY OCHIENG ONYANGO (Sued on his behalf and** **on behalf of the estate of ONYANGO CHRISTOPHER RUDOLF and** **BEN D. ODHIAMBO)..................................DEFENDANT/APPLICANT** **RULING** **(On validity of a preliminary Objection)** **Introduction** 1. The plaintiffs who are the Respondents in the instant Preliminary Objection filed contemporaneously a Notice of Motion under Certificate of Urgency and an Originating Summons both of which were dated 28th October 2025. In the application, they sought orders of injunction barring the respondent from dealing with a portion of 4.0 Ha of land registration number Kanyamkago/Kajulu/845 or otherwise doing anything that would interfere with their peaceful possession and occupation of the said suit property. In the Originating Summons, they stated that they have been in peaceful, open and continuous occupation of the suit property for a period exceeding 40 years. They prayed that they be declared the owners of the suit land on account of adverse possession. 2. On 13th January 2026 the Defendant file a Replying Affidavit he swore on 26th December 2025. After appointing his current advocated he filed through them a Further Affidavit sworn on 19th March 2026. Additionally, he filed a Notice of Preliminary Objection wherein he prayed that the Plaintiffs’ Notice of Motion as well as the Originating Summons dated 28th October 2028 be dismissed and struck out with costs. The legal reason of the Notice of Preliminary Objection is that the suit is time barred pursuant to Sections 18 and 19 of the Land Registration Act, Cap 300 Laws of Kenya (*sic*). 3. It was on against this set of pleadings and Objection that the court directed that the Objection be canvassed by way of written submissions. **The Defendant’s Submissions** 1. The defendant filed his submission dated 6th April 2026. He identified two issues for determination: whether the suit is statute barred pursuant to Sections 18 and 19 of the Land Registration Act, and in the alternative, whether the plaintiffs have met the threshold for grant of a temporary injunction. 2. On whether the suit was statute barred, the defendant maintained that there was an existing boundary dispute between parties. He added that Sections 18 and 19 of the Land Registration Act bars the Court from determining disputes where the boundaries have not been determined by Land Registrars. He relied on the case of **Willis Ocholla Vs. Mary Ndege [2016] KEELC 754 (KLR)** to buttress this position. He stated further that the Land Registrar, who is not a party to the instant proceedings is yet to determine the boundaries of the suit properties. 3. The defendant also submitted that the plaintiffs had not exhausted all the available remedies before moving the court. He relied on the Supreme Court decision in **Albert Chaurembo Mumba & 7 Others vs. Maurice Munyao & 148 Others Petition No. 3 of 2016** where the court held that courts should refrain from exercising jurisdiction where parties have not exhausted available remedies that exist outside the courts. 4. As to whether the plaintiffs had met the threshold for grant of order of injunction, the defendant submitted on the same in the negative. **Plaintiffs’ Submissions** 1. The Plaintiffs filed their written submissions on 22nd May 2026. They raised two issues for determination, that is, whether the application should be allowed and, who should bear the costs of the application. 2. On the first issue, the plaintiffs submitted that their suit was brought under Sections 7 and 38 (1) of the Limitation of Actions Act. They stated that they were only bound to prove the possession and continuance of the said possession of the suit lands as was held in **Wambugu v Njuguna (1983) eKLR**. 3. The plaintiffs submitted further that the fact of their occupation of the suit lands is not disputed by the defendant. Rather, what is disputed is the approximate area occupied by the plaintiffs. They submitted that Sections 18 and 19 of the Land Registration Act do not apply in the instant case since the same applies to boundary delineation. They maintained that their claim is one of adverse possession of over ten acres of land registered in the defendant and referred the court to the photographs they had presented to the court to show their occupation of the said suit properties. 4. On the issue of costs, the plaintiffs relied on Section 27 of the Civil Procedure Act which guides when exercising discretion in awarding costs. **Issues, analysis and determination** 1. This court has carefully analysis of the Preliminary Objection, the Originating Summons, the Replying Affidavit and Further Affidavit, and the submissions of the parties as well as the relevant law. It finds that the issues for determination here are: whether the Preliminary Objection is merited, and who should bear the cost of the Preliminary Objection. 2. The starting point is the understanding of what a preliminary objection consists of. The law governing Preliminary Objections was set out in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors. (1969) EA 696** where the court established the threshold that must be met for any point of contention to qualify as such. Accordingly, the Court held in the decision as follows: ***“A Preliminary Objection consists of appoint of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as preliminary point may dispose of the suit. example is 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 that used to be called 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.’’*** 1. This position has been subsequently amplified by courts in many an instance. In **Odeny (Formerly Victor Onyango Odeny) v Attorney General (Petition E415 of 2022) [2024] KEHC 5627 (KLR) (Constitutional and Human Rights) (23 May 2024)** (Ruling) the court cited Oraro v Mbaja [2005] 1KLR and observed that: ***‘‘19. Furthermore, the observation in the Oraro vs. Mbaja Court stated as follows: [2005] 1 KLR offers significant insight. The court 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 demurrer. It raises a pure point of law, which is argued on the assumption that all facts pleaded by the opposite side are correct. It cannot be raised if any fact is to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increase costs and, on occasion confuse issues and this improper practice should stop… The principle is abundantly clear. A “Preliminary Objection” correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a Preliminary Objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true Preliminary Objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point…Anything that purports to be a Preliminary Objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence…….” (emphasis mine)*** ***20. From the reading of the above authorities, the essential characteristics of a Preliminary Objection can be succinctly stated as follows:*** * + 1. ***It must be on a pure point of law, not factual matters.*** 2. ***It is argued on assumption that all facts pleaded by the party against whom that objection is targeted are correct.*** 3. ***If any fact has to be ascertained or if what is sought in the objection is an exercise of judicial discretion, it cannot be raised.*** 4. ***If successful, it must be capable of disposing the suit without the need of proceeding to full trial.*** 1. Similarly, in **Kariuki v Kariuki & 3 others (Land Case E162 of 2025)[2025] KEELC 7839 (KLR) (13 November 2025) (Ruling)** the court held that: ***“9. Also, the case of John Musakali vs. Speaker County of Bungoma & 4 others (2015) eKLR, it was held that:*** ***“The position in law is that a Preliminary Objection should arise from the pleadings and on the basis that facts are agreed by both sides. Once raised the Preliminary Objection should have the potential to disposing of the suit at that point without the need to go for trial. If, however, facts are disputed and remain to be ascertained, that would not be a suitable Preliminary Objection on a point of law.”*** ***10. From the above authorities, it is clear that a Preliminary Objection ought to be based on a pure point of law, and consists of facts which are not disputed by either party. In this case, I am satisfied that the Preliminary Objection raises a pure point of law as it challenges the jurisdiction of this court to hear and determine this suit.*** 1. Further, of preliminary objections, this Court, in **Somoni v Muangi & another (Environment & Land Case 9 of 2024) [2024] KEELC 13964 (KLR) (5 December 2024) (Ruling)**, stated: ***“It should not be lost to the parties that a preliminary objection is always grounded solely on points of law, raised by either a Defendant or Plaintiff. It arises from pleadings. It does not touch on any facts at all, otherwise it would go to the merits of a dispute, which would call for adduction of evidence, a clarification of the same by way of testimony in chief or deposition testing its veracity, weight or proof by way of cross-examination. Thus, where a party purports to raise a point that calls for clarification by way of evidence or a rebuttal by way of evidence, that is not a point of law raised. Such a ‘preliminary objection’ will not succeed on that account.”*** 1. Additionally, this Court against held, in Achiando v Domo & 2 others (Environment & Land Case E002 of 2025) [2025] KEELC 798 (KLR) (21 February 2025) (Ruling), ***“A preliminary objection is a point of argument between parties that is grounded solely on the law. It may be raised by either a Plaintiff, Claimant or Petitioner on the one hand or Defendant or Respondent on the other. It arises by necessary implication rom parties’ pleadings, when compared with provisions of the law on the issue before the court. Pleadings though a skeleton of a party’s case or defence form an important ingredient of his case. In their state they suffice for anyone to understand the genesis of a dispute. A Preliminary Objection therefore does not touch on any (other) facts at all than are pleaded, otherwise it would go to the merits of the dispute. If a court were to analyzing the merits of the dispute it would call for adduction of evidence, and a clarification of the same by way of testimony in-chief or deposition and the testing of its veracity, weight or proof by way of cross-examination.”*** 1. Further, this Court has on several occasions restated the legal position on preliminary objections. Thus, in Kuria & 27 others v Mott & 12 others (Environment & Land Case 23 of 2021) [2024] KEELC 4220 (KLR) (14 May 2024) (Ruling) it stated as follows: ***“It is clear that a Preliminary Objection arises on a point of law only. The Court needs only to examine the pleadings and compare the issues raised therein with the law in issue and make a finding as to whether the failure to comply with what the law requires or provides is so fundamental that it goes to the root of the claim, defence, petition or plaint. This is what this Court will do in regard to the objection raised.”*** 1. Also, in **Bashir Haji Abdullahi v Adan Mohammed Noor & 3 others [2004] e KLR**, the same Court held that, ***“We are of the considered view that if a party wishes to raise a Preliminary Objection and files in Court a Notice to that effect and is subsequently served on other parties to the suit, the Preliminary points should be sufficiently particularized and detailed to enable the other side and indeed the court to know exactly the nature of the preliminary points of law to be raised. To state that “the application is bad in law” without saying more does not assist the other parties to neither the suit nor the Court to sufficiently prepare to meet the challenge. If it is only at the hearing that the Preliminary Objection is amplified and elaborated, it gets the other side unprepared and is reminiscent of trial by ambush.”*** 1. This then turns this court to analyzing, in the instant Objection whether the point of law alleged in it is a pure point of law. To start with, it is vital to underscore the point that for a contention between parties to qualify as a point of law it must stem from only pleadings of parties as compared with the provisions of law over the issue raised. This is in line with the Mukisa Biscuits case (above) and the other decisions cited above. This means that any argument that will call on the court to analyze evidence will not be a pure point of law hence not a preliminary objection. That has to be determined on the meritorious consideration of the facts or evidence to be adduced on it by the parties are the trial and not at a preliminary stage. 2. This calls on the court to distill the pleadings of the parties herein as against the law in issue. In the instant matter, pleadings of the parties can only be the Originating Summons, on the part of the applicant, and the Replying Affidavit and Further Affidavit on the part of the Defendants. 3. On his part the Applicant/ Plaintiff pleaded that he has been in open and continuous occupation of the suit land which measures approximately 4.0 hectares for over 40 years. He thus claims it by virtue of adverse possession. With regard to the proof of occupation he has annexed a number of photographs. But the Court needs not at this stage to analyse the evidence regarding occupation and the duration thereon: all it requires to scrutinize is whether the Plaintiff’s claim is precisely and sufficiently pleaded as to fall within the provisions of the law, that is to say Sections 7, 13 and 38(1) of the Limitation of Actions Act, regarding adverse possession or not, AND NOT raising an issue of a boundary dispute. 4. The above, in my view, has been discharged by the Claimants/Plaintiffs. This contention has to be compared with the Defendant’s pleadings regarding his contention about a boundary dispute as compared with the plaintiff’s claim. 5. On his part, the defendant argued that the suit is barred by statute, in particular, Sections 18 and 19 of the Land Registration Act since the dispute herein is a boundary dispute. He relied on his Replying Affidavit, which he swore on 26th December 2025. In them he deponed that the dispute at hand revolves around the delineation of boundaries of the parties’ parcels of land, which he gives as Kanyamkago/Kajulu/845 and Kanyamkago/Kajulu/844. It is not in dispute that the Plaintiffs claim acquisition of parcel No. 845 of which the Defendant does not dispute to be the registered owner by virtue of transmission from the deceased owners. 6. The plaintiffs on their part do not admit that the issue between them is a boundary dispute. Instead, they insist that their suit is founded on Section 7 and 38 (1) of the Limitation of Actions Act which provides for adverse possession. 7. Without going into the merits of the issues between the parties this Court has duly considered the Originating Summons and the Responses thereto. The Respondent’s case is that the issue between them is a boundary dispute. But when his own pleadings are carefully analysed, besides pleading in paragraphs 3 and 5 that there has been a boundary dispute for the last two years between him over the suit land and 1st Plaintiff, Anastasia Atieno who owns and lives on parcel No. 844, the Defendant does not state when she started occupying the part of the suit land that she claims. Moreover, the suit is not between her alone and him: it has five other Plaintiffs who claim he suit land by virtue of adverse possession. Thus, the Defendant does not dispute that they reside on the suit land which they too claim by adverse possession. This therefore cannot place their claim as a boundary dispute. They claim ownership and occupation of the entire parcel of approximately 4.0 Ha. At paragraphs 8 and 9 the Defendant even admits that the parties are occupying the suit land. What he does not bring about is the length of time they have been residing on the suit land. This leaves it for a matter of evidence to be adduced at the hearing as to how long and of what nature their occupation has been. It cannot fall under a boundary dispute as to deprive this court of jurisdiction. 8. Further, if, as the Plaintiffs claim they have been in occupation on the land for over forty years, it is a question of law as to whether the Defendant’s claim or defence of there being a boundary dispute between him and the Plaintiff would ultimately stand if the claim had not been made before the end of twelve years. That would be a matter of evidence adduction, and which the Land Registrar would have no jurisdiction to determine. This is because, from the pleadings, one party avers they have been on the suit land for 4o years. The other party, the defendant, does not dispute or specify the duration of their occupation but the pleads that the dispute arose within the las two years. These are not issues the land registrar can determine but the Court. 9. The Defendant pleaded that the suit was time barred by virtue of Sections 18 and 19 of the Land Registration Act. In my humble view the provisions do not fix a time limit for bringing a dispute under them hence the claim cannot be time barred particularly, when a claim for adverse possession is one that is depended, among other limbs, time running longer than the recovery period of twelve (12) years. Rather they provide that where a boundary has not been fixed as between parties, the court lack jurisdiction to determine the same unless the land registrar has fixed and noted it in the register. But, in the instant matter the Plaintiffs claim not a boundary dispute but ownership by way of adverse possession. And on the converse, it would be a matter of law regarding the validity of a defence of a boundary dispute where it is to be confirmed whether it was brought in time or outside of the limitation period for recovery of land. 10. In my view the attempt to invoke a boundary dispute and involve the land registrar and the surveyor as pleaded in the Further Affidavit of the Defendant is an afterthought by him aimed at going around the claim of adverse possession. In any event, at paragraph 7 of his Replying Affidavit which, as I have stated above, leaves out all other plaintiffs except the 1st (Anastasia), it is clear that the boundary between the two had even been established long before be a private surveyor, and the 1st Plaintiff continued to occupy her part which she now claims by adverse possession. This is a fact known clearly between both parties and which leaves them at the jurisdiction of the court to determine whether the occupation is adverse of or not. Lastly, even is there court have been a boundary dispute between the 1st Plaintiff and the Defendant, the claims by the rest of the Plaintiffs would remain and have to go for trial. This cannot defeat the suit through the instant purported preliminary objection. 11. Regarding the submissions about the whether the application had met the threshold for an injunction, it is clear that these are not points of law but facts as to whether there is established a prima facie case, or loss to be suffered which the Defendant cannot be compensated by damages, and where the balance of convenience tilts to. This, this limb of the Objection also fails. Thus, the facts raised by the Defendant are all disputed by the Plaintiffs and they must be verified ultimately by evaluation of evidence. 12. The upshot of the foregoing is the Preliminary Objection lacks merit and is hereby dismissed. 13. On the issue of costs, the court will exercise its discretion and award costs to the plaintiff/respondent pursuant to Section 27 of the civil procedure Act. 14. What is left for the Court to do now is to fix the Plaintiffs’ application dated 28th October 2025. It is therefore to be heard on 4th November 2026. 15. Orders accordingly. **Ruling dated, signed and delivered virtually via the Teams Platform this 27th day of July 2026** **HON. DR. IUR NYAGAKA,** **JUDGE** **From 11:09 AM, in the presence of,** **Ms. Ogutu holding brief for Mboya for the Plaintiff/Respondents** **Obok Advocate for the Defendants**