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ELCDismissedNot stated in judgment· [2022] KEELC 2169 (KLR)

Esther Nyaboke Ondara v Susan Njeri & District Land Registrar, Nakuru [2022] KEELC 2169 (KLR)

Environment and Land Court
18 January 2022
MNMwangi Njoroge
874 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a landowner's bid to end an adverse possession claim early, because the objection depended on facts requiring evidence at a full hearing.

What this practically means

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Executive summary

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This is a first-instance ruling of the Environment and Land Court at Nakuru (Mwangi Njoroge J) on a preliminary objection dated 8/6/2021 and filed 17/6/2021 by the 1st defendant against a suit filed on 15/6/2020 seeking, among other orders, a declaration that the plaintiff has acquired title to land known as Kiambogo/Kiambogo Block 2/2103 (Mwariki) by adverse possession and that the 1st defendant holds the title in trust for her. The 1st defendant objected that her title commenced on 18/6/2019, so any cause of action arose on that date; that the plaintiff had no claim under sections 7, 13 and 17 of the Limitation of Actions Act; and that she bought and immediately took possession, so no one could be in adverse possession of her land. The plaintiff, citing Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd and several adverse-possession authorities, argued that the objection depended on facts requiring proof at hearing, including whether the 1st defendant took possession on registration and whether the plaintiff's adverse possession was interrupted. Applying the Mukisa Biscuit test that a preliminary objection must raise a pure point of law argued on assumed facts, the court held the grounds required evidence and could not be determined preliminarily. The objection was dismissed with costs to the plaintiff, and the main suit was set for mention on 2/2/2022 for further directions.

Key legal issues

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01

Whether the preliminary objection is a pure point of law

Holding

It is not, because the grounds depend on facts yet to be proved, namely the 1st defendant's purchase, taking of possession, and interruption of the plaintiff's possession

Reasoning

Applying Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd, the court held that a preliminary objection is argued on the assumption that all facts pleaded by the other side are correct and fails if any fact must be ascertained. Whether the 1st defendant bought the land, immediately took possession, and thereby interrupted the plaintiff's alleged adverse possession are matters requiring evidence at hearing. Determining them on a preliminary objection risks a faulty verdict.

p. 2

Legal principles established

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  • A preliminary objection must raise a pure point of law and cannot be sustained where facts require ascertainment

Court orders

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  1. 1.The 1st defendant's preliminary objection is dismissed
  2. 2.Costs of the preliminary objection to the plaintiff
  3. 3.The main suit to be mentioned on 2/2/2022 for further directions
Jurisdiction invoked
Environment and Land Court jurisdiction under the ELC Act (not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Esther Nyaboke Ondara v Susan Njeri & District Land Registrar, Nakuru [2022] KEELC 2169 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2169/eng@2022-01-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.