Mwangi v Muigai (Land Case E472 of 2025) [2026] KEELC 2020 (KLR)

The court accepted that section 7 of the Limitations of Actions Act, being jurisdictional, attains the threshold of a pure preliminary point of law capable of disposing of the suit. However, on the facts, the applicant is not bringing an action to recover land; she relies on the same 12-year limitation period to claim that the registered owner's rights have been extinguished by adverse possession under section 38. Because the statutory basis of the claim is section 38 and not an action for recovery, the objection fails.

Relying on Mukisa Biscuit and Oraro v Mbaja, the court held that a preliminary objection must be a pure point of law assumed on pleaded facts. Determining res judicata would require additional evidence to ascertain the substantial issues in the former suits. Further, the pleadings annexed to the replying affidavit did not show the former suits were heard and finally determined on merit — they were dismissed for want of prosecution. The res judicata objection therefore fails as a preliminary objection.

The applicant claimed over 12 years of uninterrupted possession, which the court found established a prima facie case — a position the respondent herself corroborated by arguing the suit was filed over 12 years after the applicant took possession. On irreparable harm, the court held damages would not adequately compensate the applicant given her continuous occupation, citing Pius Kipchirchir Kogo v Frank Kimeli Tenai. On balance of convenience, applying Amir Suleiman v Amboseli Resort, the court found a lower risk of injustice in granting the injunction pending the hearing of the suit on its merits.