Lizzy & 31 others v Damji & another (Environment and Land Case E086 of 2024) [2025] KEELC 8601 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants' suit contravenes section 41(a)(i) of the Limitation of Actions Act, and if so, what order to issue
- 2.Who pays the costs?
Key legal issues
#Whether the preliminary objection under section 41(a)(i) of the Limitation of Actions Act qualified as a pure point of law
It did not; ownership and tenure of the suit property are disputed and the alleged overlap with government parcel MN/V1/702 was not a pleaded fact, so evidence would be required
The 2nd respondent argued the suit property overlaps MN/V1/702 registered in the name of the Government of Kenya, and adverse possession cannot lie over government land. The applicants countered that the parcel they claim is private land registered to the 1st respondent. The court held that because ownership and tenure are contested and the overlap claim was not pleaded in the originating summons, evidence would be needed, disqualifying the objection as a preliminary one.
Costs of the preliminary objection
Costs followed the event under section 27 of the Civil Procedure Act; the applicants were entitled to costs
Section 27 of the Civil Procedure Act provides that costs follow the event unless the court directs otherwise on good grounds. The judge found no reason to deviate and awarded the applicants the costs of the preliminary objection.
Legal principles established
#- A preliminary objection must be a pure point of law and may only be upheld where there is no dispute on the facts between the parties
- Where facts are contested, the proper mode is an application allowing parties to present evidence, not a preliminary objection
- Section 41(a)(i) of the Limitation of Actions Act bars acquisition of title by adverse possession over Government land
Court orders
#- 1.That as the preliminary objection raised does not amount to a pure point in law, it is rejected
- 2.That the 2nd respondent will pay the applicants' costs on the preliminary objection
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the originating summons; preliminary objection determined thereunder
Relief refused
#2nd respondent's prayer that the suit be struck out and/or dismissed with costs
The objection did not raise a pure point of law since facts on ownership and tenure of the suit property were disputed and required evidence
Costs
The 2nd respondent will pay the applicants' costs on the preliminary objection
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That as the preliminary objection raised does not amount to a pure point in law, it is rejected.
That the 2nd respondent will pay the applicants' costs on the preliminary objection.
a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit.
It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion
Issues in the judgment
#Misquoted provision in the judgment text - the objection is said to be under 'section 41(a)(i)' of the Limitation of Actions Act, but section 41 contains no subsection (a)(i); the quoted text ('This Act does not...') appears to be from section 41 of the Act generally
Typographical error in the judgment ('difierently' for 'differently')
Duplication in the quoted statutory text: 'to acquire any title any title to'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lizzy & 31 others v Damji & another (Environment and Land Case E086 of 2024) [2025] KEELC 8601 (KLR)", Case Analysis (2025). Not stated in the excerpt (originating summons dated 4th October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8601/eng@2025-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.