Osewe wa Banja v Oloo & 7 others (Environment and Land Case E007 of 2023) [2026] KEELC 5063 (KLR)
The bottom line
#The Homa Bay Environment and Land Court dismissed a preliminary objection in a land dispute, ruling such objections cannot rely on disputed facts requiring trial evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the objection raised constitutes a proper preliminary objection capable of disposing of the suit
The objection was not a pure point of law; it depended on contested factual questions about the capacity in which the 2nd Defendant acted and was therefore improperly taken.
The objection expressly grounded itself on pleadings, the record of proceedings and affidavits, inviting the Court to consider evidentiary material beyond the pleadings. Determining whether the 2nd Defendant personally committed the alleged trespass, acted for the estate, or occupied the suit land in her own right requires evidence at trial. Boundary-determination orders likewise show unresolved factual issues, so the objection falls outside the Mukisa Biscuit parameters.
The propriety of the Plaintiff's Replying Affidavit
The Replying Affidavit, being neither dated nor commissioned, was incurably defective and was struck out and expunged from the record.
Section 5 of the Oaths and Statutory Declarations Act requires the jurat to state the place and date of making, and Order 19 Rule 7 of the Civil Procedure Rules permits courts to overlook only non-fundamental defects. Failure to commission an affidavit goes to validity, and per Microsoft Corporation v Mitsumi Computer Garage Ltd such an affidavit is incurably defective and liable to be struck out.
Legal principles established
#- A preliminary objection must be a pure point of law and cannot be raised where facts must be ascertained or evidence adduced.
- An affidavit that is neither dated nor commissioned before a Commissioner for Oaths is incompetent and liable to be struck out.
Court orders
#- 1.The purported Replying Affidavit is struck out and expunged from the record
- 2.The Preliminary Objection dated 25th November 2025 is dismissed with costs
- 3.The suit shall proceed to hearing on its merits
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osewe wa Banja v Oloo & 7 others (Environment and Land Case E007 of 2023) [2026] KEELC 5063 (KLR)", Case Analysis (2026). Homa Bay ELCC E007 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5063/eng@2026-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.