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ELCDismissedNot stated in judgment· [2025] KEELC 8592 (KLR)

Gichuhi & another v Kagio (Environment and Land Case E057 of 2024) [2025] KEELC 8592 (KLR)

Environment and Land Court
5 December 2025
1,983 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a defendant's attempt to end a land suit early, ruling the objection depended on facts requiring evidence, not pure law.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court determines a Notice of Preliminary Objection dated 24th March 2025 raised by the Defendant against the Plaintiff's suit. The Defendant argued that the dispute is a boundary dispute between L.R. No. 14970/211 and L.R. No. 14790/224, that it falls within the Land Registrar's jurisdiction under Section 18(2) of the Land Registration Act, and that the suit is therefore misconceived, premature and an abuse of process. The Plaintiff countered that the suit property is registered under the Registration of Titles Act with fixed boundaries, outside the Land Registrar's mandate, and that the objection rests on contested facts. The court set out the settled law on preliminary objections (Mukisa Biscuits, Oraro v Mbaja) and on jurisdiction (Lillian S, Samuel Kamau Macharia), noting that its own jurisdiction derives from Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. It accepted that the jurisdictional ground was a pure point of law, but held that determining whether the property is registered under the Registered Land Act or the Registration of Titles Act would require examination of the title deed, register and supporting documents - disputed facts unsuitable for a preliminary objection. Since the orders sought relate to occupation and use of land, the objection was dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether the preliminary objection was a true point of law under the Mukisa Biscuits test

Holding

The jurisdictional limb was a pure point of law, but the objection failed because determining the applicable registration regime requires evidence of disputed facts.

Reasoning

The court applied Mukisa Biscuits and Oraro v Mbaja: a preliminary objection must rest on assumed pleaded facts, not contested facts. Determining whether the property is registered under the Registered Land Act or the Registration of Titles Act requires examining the title deed, land register and supporting documents, i.e. evidence, which disqualifies it as a preliminary objection.

p. 5
02

Whether the court lacked jurisdiction under Section 18(2) of the Land Registration Act

Holding

The court retains jurisdiction because the claim is for trespass/removal of a wall and the orders relate to occupation and use of land; the boundary question has not been determined and requires evidence.

Reasoning

Section 18(2) bars court action on boundary disputes of registered land not determined under that section. However, the suit here claims trespass and seeks demolition of a wall and injunction over L.R. No. 14970/224 - orders concerning occupation and use of land within Section 13 ELC Act and Article 162(2)(b). Whether the boundaries are fixed under the RTA is a factual question unsuitable for a preliminary objection.

p. 5

Legal principles established

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  • A preliminary objection must be on a pure point of law founded on undisputed facts and cannot depend on facts to be proved through evidence.
  • Where boundaries of registered land have not been fixed or determined under the Land Registration Act, the court cannot entertain a boundary dispute.
  • The Environment and Land Court's jurisdiction flows from Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, covering disputes on use and occupation of and title to land.

Court orders

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  1. 1.The preliminary objection dated 24th March 2025 is dismissed
  2. 2.Costs of the preliminary objection awarded to the Plaintiff

Authorities

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Legislation

  • Land Registration ActSection 18(1) and (2); Section 20
  • Environment and Land Court ActSection 13(1) and (2)
  • Constitution of KenyaArticle 162(2)(b); Article 159(2)(d)
  • Registered Land Act (repealed)General boundaries
  • Registration of Titles Act (repealed)Fixed boundaries
  • Physical Planning ActNot specified

Cases cited (11)

  • Mukisa Biscuits Manufacturing Company Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Oraro Vs Mbaja
    [2005] eKLR
  • Owners of Motor Vessel 'Lillian S' Vs Caltex Oil (Kenya) Limited
    (1989) eKLR
  • Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Ali & 2 others v Wangómbe
    (Environment & Land Case No E032 of 2023) (2024) KEELC 4420 (KLR)
  • Willis Ocholla v Mary Ndege
    (2016) eKLR
  • Adina v Otiato & 2 others
    (Environment & Land Court Case 81 of 2018)
  • Njumbi v Njoroge & 2 others
    (Environment & Land Case 731 of 2011) (2022) KEELC
  • Sagalla Ranches Limited v Saumu Mwanganjoni & 99 others
    (2022) eKLR 14623 (KLR)
  • Aden Abdullahi Mohammed v George Dominic Otieno & 2 others
    (2021) eKLR
  • Azzuri Limited v Pink Properties Limited
    (2018) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

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, "Gichuhi & another v Kagio (Environment and Land Case E057 of 2024) [2025] KEELC 8592 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8592/eng@2025-12-05

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