Oduodi & another v Ojwang & 2 others (Enviromental and Land Originating Summons E030 of 2024) [2025] KEELC 5338 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the objection that the suit concerns a deceased person's estate is a proper preliminary objection going to jurisdiction
It is not a pure point of law; both the identity of the land claimed and whether it forms part of a deceased's estate are matters of evidence
The court found the pleadings ambiguous as to whether the applicants claim parcel 192 or 219 by adverse possession. Because the identification of the land and whether it constitutes a deceased's estate depend on evidence to be led at trial, the objection fails the Mukisa Biscuits test of a pure point of law and must await the full hearing.
Whether failure to annex a certified extract of title violates Order 37 Rule 7(2)
No; a certificate of official search is sufficient compliance for land under the Registered Land Act/Land Registration Act
Following Johnson Kinyua v Simon Gitura Rumuri, the court held that references to certified extracts in Order 37 concern other registration systems; for Registered Land Act-type registration, a search certificate signed by the Registrar constitutes evidence of the register entries, mirroring Sections 34 and 35(1) of the Land Registration Act.
Whether adverse possession can be claimed against a deceased person's estate
Yes; such a claim survives the deceased
Relying on Karuntimi Raiji v M'makinya M'intunga, the court held that a claim for land by adverse possession survives a deceased person by virtue of Section 30(f) of the repealed Registered Land Act, equivalent to Section 28(h) of the Land Registration Act, so the ground of objection was not well taken.
Whether grounds of fatal defect and abuse of process are proper preliminary objections
No; they raise no pure points of law
The court found that the general allegations of incurable defect and abuse of process did not disclose pure points of law and declined to engage with them substantively, reinforcing the Mukisa Biscuits standard that preliminary objections must be points of law alone.
Legal principles established
#- A preliminary objection must raise a pure point of law and cannot depend on ascertaining facts
- A preliminary objection is improper where it is used as a sword to win a case that should be resolved on the merits
- A certificate of official search satisfies Order 37 Rule 7(2) for land registered under the Registered Land Act/Land Registration Act; failure to annex a certified extract of title is not fatal
- A claim for adverse possession survives against the estate of a deceased person
Court orders
#- 1.The Preliminary Objection dated 3rd November 2024 is dismissed as devoid of merit
- 2.Costs to the Applicant
- 3.Respondents to file their responses to the Originating Summons and any supporting documents within 15 days of the ruling
- 4.Parties to appear before the Deputy Registrar for pre-trial directions on a suitable date
- 5.After compliance, parties may take a date for hearing by way of viva voce evidence
- Jurisdiction invoked
- Original jurisdiction under Order 37 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act (claim for adverse possession); land registered under the Registered Land Act (repealed) and the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oduodi & another v Ojwang & 2 others (Enviromental and Land Originating Summons E030 of 2024) [2025] KEELC 5338 (KLR)", Case Analysis (2025). Amended Originating Summons dated 27th October 2024 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5338/eng@2025-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.