Mohammed v Ocean View Limited & 2 others (Environment & Land Case 57 of 2022) [2025] KEELC 3463 (KLR)

The court reviewed the classic definition of a preliminary objection from Mukisa Biscuits and its progeny, establishing that such an objection must rest on a pure point of law argued on the assumption that the facts pleaded by the other side are correct, and cannot depend on ascertaining facts or exercising discretion. Both grounds advanced - lack of jurisdiction and statutory limitation - satisfied this standard, and an issue of jurisdiction must be dealt with in limine.

Although the 3rd defendant framed the dispute as a contractual/commercial matter, the court found the pleadings showed the case concerned use, occupation and title to the suit properties. The court noted Co-operative Bank v Kangethe Njuguna holds that ELC jurisdiction over 'use' of land does not include mortgages and charges, which fall to the High Court; however, on the facts the dispute was clearly over the suit land itself, its use, planning and construction, so the ELC could entertain and finally determine the case.

The court noted the objection was grounded on Section 4 but the applicable provision, for a land claim, is Section 7 (12 years). Since the plaintiff pleaded fraud in the creation of the 2014 charge, discovered in 2017, Section 26 has the effect of starting limitation from the date of discovery. The suit, filed about three years after discovery, was therefore within time, and the precise date of discovery is a matter for trial, not a preliminary objection.

Relying on the principle that costs follow the event under Section 27(1) of the Civil Procedure Act, and the authorities confirming the successful party is typically entitled to costs absent compelling reasons, the court awarded the plaintiff the costs of the preliminary objection.