Mulwa & another v Yama (Environment and Land Case E091 of 2025) [2026] KEELC 3189 (KLR)
The bottom line
#The Environment and Land Court in Malindi dismissed a defendant's attempt to halt a land ownership dispute, ruling it raised factual questions that must be decided at trial.
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 court lacks jurisdiction by dint of section 18(2) of the Land Registration Act No. 3 of 2012, the dispute being a boundary dispute reserved for the Land Registrar
- 2.Whether this suit is res judicata Mombasa High Court Miscellaneous Application No. 43 of 2019 – Mohamed Menza Yuma v District Land Adjudication Officer Kilifi and Others
Key legal issues
#Whether the section 18 LRA boundary-dispute objection is a proper preliminary objection
It is not; the ownership of the plot the plaintiffs claim and the alleged encroachment are facts to be ascertained by evidence, so the objection fails the Mukisa Biscuits test.
The defendant denies that the plaintiffs own Kilifi/Madzimbani Mitangoni/73 and denies trespass. Under the pleadings rule, the defendant is taken to deny ownership; the plaintiffs must prove ownership at trial. Since the objection requires ascertainment of facts, it is not a pure point of law and is totally unmerited.
Whether the suit is res judicata Mombasa High Court Miscellaneous Application No. 43 of 2019
No; the plaintiffs were not parties to the former suit (their application to be joined was declined) and no material on the former suit was placed before the court.
The defendant admitted the plaintiffs' joinder application was declined, so they could not have raised these issues in the earlier case. Further, relying on Margaret Nyiha Gatambia, res judicata requires comparison of pleadings and is best raised by notice of motion; there was practically no material on the former suit before the court. The objection lacks merit.
Legal principles established
#- Jurisdiction is fundamental and must be determined at the earliest opportunity; a court without jurisdiction must down its tools.
- A preliminary objection cannot be raised where any fact has to be ascertained or where what is sought is the exercise of judicial discretion.
- Parties are bound by their pleadings; the court cannot pronounce on claims or defences not raised by the parties.
- An objection based on the ownership of the plot claimed, which must be established by evidence, does not meet the Mukisa threshold for a preliminary objection under section 18 of the Land Registration Act.
Court orders
#- 1.Both limbs of the defendant's Preliminary Objection are dismissed as a whole
- 2.The suit shall be mentioned on 19th June 2026 for pretrials
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 162(2)(b) and 165 of the Constitution and the Environment and Land Court Act (implicit); jurisdiction contested under section 18 of the Land Registration Act No. 3 of 2012 and section 7 of the Civil Procedure Act
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.
The upshot of the foregoing is that both limbs of the defendant’s Objection lack merit and the Preliminary Objection is dismissed as a whole.
The present suit shall be mentioned on 19th June 2026 for pretrials.
It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion
jurisdiction is fundamental and must be determined at the earliest opportunity and that a court without jurisdiction must "down its tools" and take no further steps in the matter.
Issues in the judgment
#The judgment is dated 19th May 2026 while the preliminary objection is dated 29th September 2025 and the pretrial mention is set for 19th June 2026, giving an unusually long interval between filing of the objection and ruling; no internal contradiction but note the dates.
The case number and title of the suit are not stated anywhere in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulwa & another v Yama (Environment and Land Case E091 of 2025) [2026] KEELC 3189 (KLR)", Case Analysis (2026). Not stated in the judgment (suit filed at Malindi, ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3189/eng@2026-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.