https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4899

Syokimau Bright Homes Security Self Help Group (Suing Through its chairperson, Josephine Mueni Ndeto) v Kosgel & another (Environment and Land Case E017 of 2025) [2026] KEELC 4899 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEELC 4899 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Case E017 of 2025 NA Matheka, J July 30, 2026 Between Syokimau Bright Homes Security Self Help Group (Suing Through its chairperson, Josephine Mueni Ndeto) Applicant and Isack Tuwei Kosgel 1st Respondent National Social Security Fund 2nd Respondent Ruling 1.The Respondents raised a preliminary objection seeking that the suit be rejected in limine on the grounds;1.That the suit herein is statute barred pursuant Article 62(1) of the Constitution of Kenya 2010 and Section 41 of the Limitation of Actions Act as the Suit Property is public land.2.That this court has no jurisdiction to hear and determine this matter by virtue of the aforementioned provisions.3.That from decided authorities this suit is for striking out ex debito justitiae. 2.This court has considered the Preliminary Objection and submissions therein. According to the Black Law Dictionary a Preliminary Objection is defined as being;“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….” 3.The above legal preposition has been made in the case of Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd. (1969) E.A. 696 where the court held that;“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurer 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 in 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 the issue. The improper practice should stop” 4.In the case of Attorney General & Another vs Andrew Mwaura Githinji & another (2016) eKLR the court outlined the scope and nature of preliminarily objection as;(i)A preliminary objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.(ii)A preliminary objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and(iii)The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute. 5.It is trite law that a preliminary objection can be brought at any time at least before the final conclusion of the case. Ideally, all facts remaining constant, it should be filed at the earliest opportunity of the subsistence of a case, in order to pave way for the smooth management and determination of the main dispute in a matter. I find that the filed preliminary objection by the Respondents herein was properly brought before the court. 6.The Respondents submitted that the Applicant’s claim is for adverse possession on the allegation that they have lived on the suit land for a period exceeding 12 years. That the suit land belongs to the 2nd Respondent and is public land hence this suit is statute barred barred pursuant Article 62(1) of the Constitution of Kenya 2010 and Section 41 of the Limitation of Actions Act as the Suit Property is public land. 7.In the case of Owners of the Motor Vessel M.V Lillian S. vs Caltex Oil (K) Limited (1989) KLR 1 the court held that without jurisdiction it has to down its tools. The jurisdiction of the ELC court flows from Article 162 (2)(b) of the Constitution of Kenya 2010. Section 13 (2) of the ELC Act vests this court with wide powers over any dispute relating to land it provides that;In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—a.relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;b.relating to compulsory acquisition of land;c.relating to land administration and management;d.relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; ande.any other dispute relating to environment and land 8.The jurisdiction of this court to hear and determine this suit flows from the Constitution and the law. The jurisdiction of court is not conferred upon it by parties nor can the court confer upon itself jurisdiction. The Supreme Court in Samuel Kamau Macharia and Another vs Kenya Commercial Bank Limited & 2 others (2012)eKLR held that;“A court’s jurisdiction flows from either the constitution of 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.” 9.Be that as it may, the Plaintiff/Applicants, maintain that they have been in peaceful open, continuous and uninterrupted possession and occupation of the suit property since the year 2008. That the 2nd Respondent has not adduced evidence of the root of their title. I find that issue of ownership is contested in this matter and this court cannot determine at this preliminary stage whether or not the suit land is public land. The issue of ownership of LR. No. 20355 Mavoko is a contested factual issue and it would be premature to determine otherwise. I find this preliminary objection is not merited and l overrule the same. Costs to be in the cause.It is so ordered. DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 30TH DAY OF JULY 2026.N.A. MATHEKAJUDGE