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ELCDismissedNot stated in the ruling (Originating Summons dated 8th January 2025)· [2025] KEELC 8332 (KLR)

Too & another v Langat & 2 others (Enviromental and Land Originating Summons E003 of 2025) [2025] KEELC 8332 (KLR)

Environment and Land Court of Kenya
27 November 2025
3,238 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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A Kenyan court ruled that claims of res judicata and incomplete adverse possession require evidence, so a land dispute must proceed to full trial.

What this practically means

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Executive summary

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The Respondents raised a preliminary objection dated 25th February 2025 against the Applicants' Originating Summons dated 8th January 2025, by which the Applicants claim 1.5 acres of Kericho/Kapsuser/8055 and 8056 (subdivisions of Kericho/Kapsuser/1772) by adverse possession and seek a permanent injunction. The Respondents argued that the suit is res judicata, having been adjudicated in Kericho HCC No. 51 of 2003 in which the 1st Applicant's adverse possession claim failed and he was refunded his purchase price; that the titles were only issued in February 2024 so the twelve-year period cannot have lapsed; and that the suit is defective and an abuse of process. The Applicants countered that res judicata and the limitation computation are factual questions unsuitable for a preliminary objection, relying on Mukisa Biscuits, George Kamau Kimani and other authorities. The court, L. A. Omollo J, framed three issues. Applying Oraro v Mbaja, Henry Wanyama Khaemba and George Kamau Kimani, it held that res judicata requires interrogation of pleadings in the former suit and cannot be raised by preliminary objection; and, following Joseph Kibaara M'Icuga, that whether twelve years had lapsed since the Respondents' 2024 registration is a factual issue reserved for the hearing. The preliminary objection was dismissed with costs. The substantive adverse possession claim remains for full trial.

Key legal issues

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01

Whether res judicata can be determined on a preliminary objection

Holding

It cannot; the issue requires interrogation of pleadings in the former suit

Reasoning

Applying Oraro v Mbaja, Khaemba and George Kamau Kimani, the court held that res judicata entails comparison of pleadings and proof of facts, which cannot be done on the limited assumptions of a preliminary objection. The proper vehicle is a notice of motion with pleadings annexed. Ground one accordingly failed.

p. 6
02

Whether failure to prove twelve years of adverse possession can sustain a preliminary objection

Holding

No; computation of the limitation period is factual and reserved for the hearing

Reasoning

Relying on Section 7 of the Limitation of Actions Act and Joseph Kibaara M'Icuga v M'Chabari Kinoro, the court found that whether twelve years had lapsed since the Respondents' 2024 registration is a contested factual question that invites evidence and can only be resolved at the hearing of the suit, not on a preliminary objection.

p. 7
03

Costs of the preliminary objection

Holding

Costs follow the event and were awarded to the Applicants

Reasoning

Section 27 of the Civil Procedure Act prescribes that costs follow the event, and a successful party ordinarily receives costs unless the court directs otherwise for good reason. The Respondents lost the objection, so costs were awarded to the Applicants.

p. 7

Legal principles established

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  • A preliminary objection must raise a pure point of law and cannot rest on disputed facts requiring evidence
  • Res judicata is improperly raised by way of preliminary objection; it should be raised by notice of motion with pleadings annexed
  • Whether the twelve-year limitation period for adverse possession has lapsed is a factual issue determinable only at the hearing

Court orders

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  1. 1.The Respondents' preliminary objection dated 25th February, 2025 is dismissed.
  2. 2.Costs of the preliminary objection awarded to the Applicants.

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure Act (Cap. 21)Section 27
  • Limitation of Actions ActSection 7
  • Law of Succession ActSection 45

Cases cited (11)

  • Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others
    [2017] eKLR
  • Lal Chand vs Radha Kishan
    AIR 1977 SC 789
  • Wambugu vs Njuguna
    [1983] KLR 172
  • Mtana Lewa v Kahindi Ngala Mwandi
    [2015] eKLR
  • Njeri Kimani (Suing in her capacity as the Administrator of the estate of Nasser Kimani Njoroge (deceased) v Edwin Onesmus Wanjau
    [2022] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd.
    [1969] EA 696
  • George Kamau Kimani & 4 others vs County Government of Trans Nzoia and another
    [2014] eKLR
  • Ushago Diani Investment Limited v Abdulwahab
    (Environment & Land Case 12 of 2023) [2023] KEELC 20213 (KLR) (27 September 2023) (Ruling)
  • Oraro v Mbaja
    [2005] eKLR 141
  • Henry Wanyama Khaemba Vs Standard Chartered Bank Ltd & Another
    [2014] eKLR
  • Joseph Kibaara M'Icuga V M'Chabari Kinoro
    [2020] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (not expressly cited in the ruling)

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, "Too & another v Langat & 2 others (Enviromental and Land Originating Summons E003 of 2025) [2025] KEELC 8332 (KLR)", Case Analysis (2025). Not stated in the ruling (Originating Summons dated 8th January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8332/eng@2025-11-27

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