Abok v Okundi (Enviromental and Land Originating Summons E078 of 2025) [2026] KEELC 3751 (KLR)
The bottom line
#The Environment and Land Court dismissed a bid to strike out an adverse possession claim, confirming that preliminary objections must be pure points of law, not fact-based arguments.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection was a pure point of law
It was not; it depended on contested facts about continuity, peace and exclusivity of occupation and on an alleged earlier suit whose particulars were not furnished.
The court reasoned that to determine whether occupation was continuous, peaceful, exclusive and uninterrupted, parties would need to file documentary evidence and testify on oath. Similarly, the allegation of an earlier withdrawn suit was unsupported by any particulars or affidavit evidence, so the objection mixed fact with law and failed the Mukisa Biscuits threshold.
Whether the alleged earlier suit rendered the claim an abuse of court process
The respondent gave no particulars or affidavit evidence of the earlier suit, and should have moved by notice of motion under Order 2 Rule 15 with supporting documents.
The court held the respondent had not furnished evidence showing such a case existed or was withdrawn, so abuse of process could not be determined. Had the respondent filed a notice of motion under Order 2 Rule 15 with relevant documents, the court would have considered striking out on its merits. Instead, the issues belonged in a replying affidavit.
The proper approach to striking out pleadings
Striking out is draconian and a last resort; courts must favour substantive justice over technicalities under sections 1A and 1B of the Civil Procedure Act and Article 159(2).
Relying on Kivanga Estate Limited v National Bank of Kenya Limited, the court noted striking out is discretionary and draconian, reserved for abuse of process or scandalous, frivolous or vexatious pleadings. The overriding objective and Article 159(2) require courts to dispense substantive justice without being shackled by procedural technicalities, and to ensure each party has a day in court.
Legal principles established
#- A proper preliminary objection must be a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or discretion exercised.
- Striking out a suit is a draconian measure to be used only as a last resort.
- Failure by a party to file submissions does not automatically result in the opposing preliminary objection being allowed.
Court orders
#- 1.Preliminary Objection dismissed
- 2.Costs shall abide the outcome of the suit
- Jurisdiction invoked
- Environment and Land Court Act, sections 3 and 19(1); Article 159(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abok v Okundi (Enviromental and Land Originating Summons E078 of 2025) [2026] KEELC 3751 (KLR)", Case Analysis (2026). Originating Summons dated 5th November, 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3751/eng@2026-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.