Lochu v Moseti & 3 others (Enviromental and Land Originating Summons E004 of 2025) (Environment and Land) [2025] KEELC 7035 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#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
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.
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.
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
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.
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.
Legal principles established
#- 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
#- 1.The Preliminary Objection dated 26th June 2025 is dismissed
- 2.Costs of the Preliminary Objection awarded to the Plaintiff/Applicant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.