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ELCOtherNot stated in the judgment as provided (transferred from Kabiyet Magistrates' Court)· [2025] KEELC 3191 (KLR)

Lelei v Kimeto (Environment & Land Case 1 of 2024) [2025] KEELC 3191 (KLR)

Environment and Land Court
7 April 2025
2,030 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court declined to end a land dispute as time-barred because the facts were disputed, and preserved the status quo over the parcels.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kapsabet (Ong'ondo, J) on a Notice of Motion dated 21st January 2025 by the plaintiff/applicant, the registered owner of Nandi/Ndulele/983 and Nandi/Ndulele/426. She sought a temporary injunction restraining the defendant/respondent from entering, ploughing or dealing with the suit parcels pending hearing and determination of the matter, alleging trespass on 20th January 2025, and sought police enforcement. The respondent opposed through a preliminary objection that the suit is time barred under Sections 7, 13, 17, 18, 26, 31, 38 and 39 of the Limitation of Actions Act, grounds of opposition and a replying affidavit asserting continuous occupation and tilling since 1988, and alternatively prayed for continuation of the status quo orders recorded by consent at Kabiyet Law Courts on 28th March 2024. The suit had been transferred from Kabiyet Magistrates' Court by orders of 9th May 2024. The court framed three issues: limitation, the injunction threshold, and costs. Relying on Mukhisa Biscuit and Oraro v Mbaja, it held the preliminary objection was not a pure point of law since possession and the period thereof were disputed, and declined to find the suit time barred. On the injunction, invoking Giella as restated in Nguruman and Section 13 of the Environment and Land Court Act, the court found the threshold for an interim preservation order met and adopted the existing status quo orders, additionally restraining any sale, charging, transfer, subdivision, alienation, disposal, fencing off or development of the parcels. The application was disallowed, with costs in the cause.

Key legal issues

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01

Whether the preliminary objection on limitation was a pure point of law

Holding

It was not; it depended on disputed facts about possession and the date of trespass, so the suit was not found time barred

Reasoning

The respondent claimed occupation since 1988 under the Limitation of Actions Act, while the applicant asserted occupation and registered ownership and pleaded trespass dates of 24th February 2024 in the plaint and 20th January 2025 in the application. Because the period and fact of possession are disputed, ascertaining them requires evidence, disqualifying the objection under Mukhisa Biscuit and Oraro v Mbaja.

p. 3
02

Whether the applicant met the Giella threshold for an interlocutory injunction

Holding

The court did not grant the injunction; it found the threshold for an interim preservation order under Section 13 of the Environment and Land Court Act met and preserved the status quo instead

Reasoning

The court treated the application as one for preservation. Since status quo orders recorded by consent at Kabiyet Law Courts on 28th March 2024 were still in force and had not been set aside, the court adopted them and added restraints on any dealing with or development of the suit parcels, rather than issuing the injunction sought.

p. 4
03

Costs of the application

Holding

Costs to be in the cause

Reasoning

Having disallowed the application while maintaining preservation orders, the court made no adverse costs order and simply reserved costs to the outcome of the main suit.

p. 5

Legal principles established

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  • A preliminary objection that depends on disputed facts is not a pure point of law and cannot sustain a finding that a suit is time barred
  • Status quo orders preserve the substratum of the suit pending hearing and determination

Court orders

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  1. 1.The interim preservation orders issued by the subordinate court on 28th March 2024 are adopted and remain in force as orders of this court over the suit parcels Nandi/Ndulele/983 and Nandi/Ndulele/426
  2. 2.No party shall sell, charge, transfer, sub divide, alienate, dispose of, fence off or in any manner develop the suit parcels of land pending the hearing and determination of the suit
  3. 3.The instant application is disallowed
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 13, 17, 18, 26, 26-31, 31, 38 and 39
  • Civil Procedure Rules 2010Order 40
  • Environment and Land Court ActSection 13

Cases cited (10)

  • Giella vs Cassman Brown Ltd.
    (1973) EA 358
  • Mrao Ltd. vs First American Bank of Kenya Ltd. & 2 others
    (2003) eKLR
  • Peter Ndambu Nzikali & another v Onesmus Ndambu Musau
    [2015] eKLR
  • Kadzo Charo v Alex Nzai Dzombo
    [2019] eKLR
  • Mukhisa Biscuit Manufacturers Ltd. vs. West End Distributors Ltd.
    [1969] E.A. 696
  • Oraro v Mbaja
    [2005] KEHC 3182 (KLR)
  • National Bank of Kenya Limited -vs- Shimmers Plaza Limited
    [2009] eKLR
  • Nguruman Limited vs Jan Bonde Nielsen and 2 others
    (2014) eKLR
  • Hutchings Biemer Ltd v Barclays Bank of Kenya Ltd & 2 others
    [2006] eKLR
  • Ogada-vs-Mollin
    (2009) KLR 620
On appeal from
Kabiyet Magistrates' Court
Jurisdiction invoked
Environment and Land Court Act, 2015 (suit transferred from Kabiyet Magistrates' Court by orders of 9th May 2024); interim preservation under Section 13 of the Environment and Land Court Act

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, "Lelei v Kimeto (Environment & Land Case 1 of 2024) [2025] KEELC 3191 (KLR)", Case Analysis (2025). Not stated in the judgment as provided (transferred from Kabiyet Magistrates' Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3191/eng@2025-04-07

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