Onywere v Alendi (Environment and Land Case E030 of 2024) [2025] KEELC 6904 (KLR)
The bottom line
#A Kenyan court dismissed an attempt to strike out a land trespass suit, confirming trespass claims don't require prior boundary resolution by the Land Registrar.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit offend sections 18(2) and 19 of the Land Registration Act on boundary disputes
The Preliminary Objection fails because the plaint is founded on trespass and does not raise any boundary dispute; establishing the alleged boundary issue would require evidence
The court read the plaint and found it refers only to the suit plot and pleads trespass - entry and erection of structures without consent. The neighbouring parcel was introduced only in the defence, belongs to the defendant's father-in-law who is not a party, and no boundary dispute is indicated on the pleadings. Determining the alleged boundary relationship would require evidence, disqualifying the objection as a pure point of law.
Whether the objection meets the Mukisa Biscuit threshold for a preliminary objection
Though framed as a point of law on jurisdiction, the objection depends on facts to be ascertained and therefore is not sustainable
Applying Mukisa Biscuit, the court noted a preliminary objection is argued on the assumption that all pleaded facts are correct and cannot be raised if facts must be ascertained. Since the existence of a boundary dispute between the two parcels would require evidence, the objection fell outside the threshold and lacked merit.
Legal principles established
#- A preliminary objection cannot be raised if any fact has to be ascertained or where the exercise of judicial discretion is sought
- A boundary-determination objection requires the court to examine whether a boundary dispute genuinely arises on the pleadings before jurisdiction is ousted
Court orders
#- 1.The Preliminary Objection dated 18th December 2024 is dismissed
- 2.Each party to bear own costs of the Preliminary Objection
- Jurisdiction invoked
- Environment and Land Court jurisdiction over trespass claims; objection based on sections 18(2) and 19(1), (2) and (3) of the Land Registration Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onywere v Alendi (Environment and Land Case E030 of 2024) [2025] KEELC 6904 (KLR)", Case Analysis (2025). Not stated in judgment (Maseno; plaint dated 14th August 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6904/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.