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ELCDismissedNot stated in judgment (Constitutional Petition, Environment and Land Court)· [2025] KEELC 4094 (KLR)

Mwaisama & 158 others v Ndara B Community & 2 others (Environment & Land Petition E001 of 2023) (Environment and Land) [2025] KEELC 4094 (KLR)

Environment and Land Court
29 May 2025
EWE. K. Wabwoto
1,401 words in judgment
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The bottom line

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The Environment and Land Court in Voi dismissed an attempt to strike out a land petition, confirming that disputed facts must be decided at trial, not through shortcuts.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Voi (E. K. Wabwoto, Judge) determines a Preliminary Objection dated 20th March 2025 raised by the 2nd Respondent, supported by the 1st and 3rd Respondents, in a constitutional petition concerning adverse possession over land said to be community land. The Respondents argued that the Petition was incompetent and bad in law, that the court lacked jurisdiction, that the Petition contravened Article 63 of the Constitution and the Land Act 2012, that the Limitation of Actions Act does not apply to community land, that adverse possession cannot be claimed against a community under Section 7 of the Limitation of Actions Act, and that the Petitioners, not being members of the Ndara B Community, could not obtain titles in their personal names. The Petitioners countered that under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act the court had jurisdiction, and that having occupied the suit land since 1952 they had locus standi. Applying Mukhisa Biscuits, Nitin Properties and Oraro v Mbaja, the court held that a preliminary objection must be a pure point of law and that the issues raised - the form of the petition, the reliefs sought, and the applicability of the constitutional, statutory and limitation provisions to adverse possession - were contested issues for trial. The Preliminary Objection was dismissed with costs to abide the outcome of the Petition.

Key legal issues

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01

Whether the Preliminary Objection was a pure point of law

Holding

The objection was not a true preliminary objection as it raised contested factual and merit-based issues

Reasoning

Applying Mukhisa Biscuits, Nitin Properties and Oraro v Mbaja, the court held that the questions of the form of the petition, the reliefs sought, the applicability of the Limitation of Actions Act, Article 63 of the Constitution and the Community Land Act to adverse possession claims are contested issues requiring trial. They could not be summarily determined without hearing the parties.

p. 4

Legal principles established

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  • A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct
  • A preliminary objection bearing factual aspects calling for proof is not a true preliminary objection

Court orders

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  1. 1.The 2nd Respondent's Preliminary Objection dated 20th March 2025 is dismissed
  2. 2.Costs of the Preliminary Objection to abide the outcome of the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 63(1), Article 63(4), Article 162(2)(b), Article 22, Article 23(1), Article 165(3)(d)
  • Land ActNot specified
  • Community Land ActDefinition of 'community'
  • Limitation of Actions Act, Cap. 22Section 7
  • Environment and Land Court ActSection 13

Cases cited (5)

  • Anarita Karimi Njau v The Republic
    (1979) eKLR
  • Mukhisa Biscuits Manufacturing Co. Ltd V. West-End Distributors Limited
    (1969) E.A 696
  • Nitin Properties Ltd v Singh Kalsi & another
    [1995] eKLR
  • Oraro v Mbaja
    [2004] eKLR
  • Cami Graphics Limited v Chief Registrar of the Judiciary & 2 others; Commissioner of Lands & 4 others (Interested Parties)
    (Constitutional Petition 543 of 2022) [2024] KEHC 2999 (KLR)
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act (as invoked by the Petitioners)

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, "Mwaisama & 158 others v Ndara B Community & 2 others (Environment & Land Petition E001 of 2023)  (Environment and Land) [2025] KEELC 4094 (KLR)", Case Analysis (2025). Not stated in judgment (Constitutional Petition, Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4094/eng@2025-05-29

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