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ELCDismissedNot stated in the extract provided (Originating Summons dated 26th May 2025)· [2025] KEELC 7035 (KLR)

Lochu v Moseti & 3 others (Enviromental and Land Originating Summons E004 of 2025) (Environment and Land) [2025] KEELC 7035 (KLR)

Environment and Land Court
16 October 2025
3,273 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiff, Stephen Lochu, filed an Originating Summons and Notice of Motion dated 26th May 2025 seeking declarations that he had been in open, continuous and uninterrupted possession of land parcel Naivasha/Oljorai Phase 1/1438 (1.51 ha, Nakuru County) for over 12 years — indeed over 30 years since 1993 — that he had acquired title by adverse possession, that the 1st Defendant's 2018 title was extinguished, and that he be registered as proprietor. The application followed the dismissal of the 1st Respondent's eviction suit (Nakuru Magistrate Court ELC Case No. E200 of 2023) on 29th April 2025 for failure to prove a valid title. The 1st Respondent filed a Preliminary Objection dated 26th June 2025 arguing that the suit was premature because time under Sections 7 and 38(1) of the Limitation of Actions Act only began running on his registration on 3rd October 2018, and that the Originating Summons was fatally defective for want of a certified extract of title as required by Order 37 Rule 7 of the Civil Procedure Rules. Applying the Mukisa Biscuit test, M.C. Oundo J held that the objection rested on contested facts — the length and nature of the Applicant's occupation and when the cause of action accrued — being mixed questions of law and fact fit only for full trial. The Order 37 Rule 7 argument also failed because the Applicant had annexed an extract of title and Certificate of Official Search. The Preliminary Objection was dismissed with costs; the substantive adverse possession claim proceeds to hearing.

Key legal issues

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01

Whether the Preliminary Objection based on the statutory 12-year period under Sections 7 and 38(1) of the Limitation of Actions Act raised a pure point of law

Holding

The objection failed because it depended on contested facts — the Applicant's alleged 30 years of occupation and when the cause of action accrued — which can only be established at full hearing.

Reasoning

The court applied the Mukisa Biscuit test: a preliminary objection must be a pure point of law on assumed facts. Here the Applicant claimed occupation since 1993, while the 1st Respondent contended time ran from his registration on 3rd October 2018. Determining when adverse possession began involves ascertaining the continuous, non-permissive possession period — a mixed question of law and fact unsuitable for summary disposal.

p. 6
02

Whether failure to annex a certified extract of title rendered the Originating Summons fatally defective under Order 37 Rule 7 of the Civil Procedure Rules

Holding

The objection failed because the Applicant had in fact annexed an extract of the title (SL-7(a)) and a Certificate of Official Search dated 25th January 2023 (SL-7(b)) to the Supporting Affidavit.

Reasoning

The court examined the Applicant's list of documents and the Supporting Affidavit, finding the first document listed was an extract of the title deed showing the 1st Defendant's registration on 3rd October 2018, annexed as SL-7(a), with a Certificate of Official Search annexed as SL-7(b). The requirement of Order 37 Rule 7 was therefore satisfied and the argument collapsed.

p. 6

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; it cannot be raised where facts must be ascertained.
  • Where the duration and nature of a claimant's occupation of land is contested, the question is one of fact that cannot be resolved on a preliminary objection.

Court orders

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  1. 1.The Preliminary Objection dated 26th June 2025 is dismissed
  2. 2.Costs of the Preliminary Objection awarded to the Plaintiff/Applicant

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 38(1)
  • Limitation of Actions ActSection 9
  • Civil Procedure RulesOrder 37 Rule 7

Cases cited (9)

  • Mukisa Biscuit Manufacturers Ltd vs Westend Distributors Limited
    [1969] E.A 696
  • Independent Electoral & Boundaries Commission v Cheperenger & 2 others
    [2015] KESC 2 (KLR)
  • Ongwen & another v Keya & another
    (Environment & Land Case E027 of 2021) [2023] KEELC 279 (KLR)
  • Benjamin Kamau Murima & Others vs Gladys Njeri
    CA No. 213 of 1996
  • Kioko & another v Mulinge & another
    (Civil Appeal 447 of 2019) [2025] KECA 274 (KLR)
  • Wilson Kazungu Katana & 101 others v Salim Abdalla Bakshwein & another
    [2015] KECA 728 (KLR)
  • George Oraro v Barak Eston Mbaj
    Civil Suit No. 85 of 1992 [2005] KEHC 3182 (KLR)
  • Mombasa Teachers Co-operative Savings and Credit Limited v Robert Muhambi Katana and 15 others
    [2018] eKLR
  • Chikove & 45 others v Mbogori & 2 others
    (Environment & Land Case (OS) E001 of 2021) [2022] KEELC 15671 (KLR) (6 December 2022) (Ruling)
Jurisdiction invoked
Sections 7 and 38(1) of the Limitation of Actions Act (Cap. 22) contested as the source of jurisdiction; the court heard the preliminary objection on whether it had jurisdiction

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, "Lochu v Moseti & 3 others (Enviromental and Land Originating Summons E004 of 2025)  (Environment and Land) [2025] KEELC 7035 (KLR)", Case Analysis (2025). Not stated in the extract provided (Originating Summons dated 26th May 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7035/eng@2025-10-16

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