Tabitha Atieno Omolo & 2 Others v Agnes Anyango Akumu & 2 Others
The bottom line
#The Environment and Land Court in Homa Bay dismissed an attempt to throw out an adverse possession claim, ruling the objection required evidence rather than pure law.
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 Preliminary Objection meets the threshold of a valid preliminary objection.
- 2.Whether the suit is res judicata within the meaning of Section 7 of the Civil Procedure Act.
- 3.Whether the suit discloses a reasonable cause of action and whether this Court has jurisdiction.
- 4.Who should bear the costs of the Preliminary Objection.
Key legal issues
#Validity of the preliminary objection
The objection failed because it required ascertainment of facts, including inspection of prior court records.
Applying Mukisa Biscuit, a preliminary objection must be a pure point of law on assumed facts. The res judicata plea required examination of prior judgments and decrees which the Respondents did not produce, so factual inquiry was indispensable and the objection could not succeed at the threshold stage.
Res judicata
The plea of res judicata failed at the preliminary stage because the prior judgments were not placed before the Court and the prior judgment was allegedly set aside on appeal for want of jurisdiction.
Section 7 requires a former suit between the same parties in a competent court. The Respondents referenced Oyugis PMELC No. 24 of 2020 and Homa Bay ELCA No. E004 of 2025 but produced no judgments, decrees or final orders. A judgment of a court without jurisdiction is a nullity and cannot found res judicata.
Cause of action and jurisdiction
The Originating Summons discloses a complete cause of action for adverse possession and the ELC has exclusive jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act.
The Applicants pleaded open, peaceful, continuous and exclusive occupation for over twelve years and extinction of the true owner's right to recover, satisfying the elements of adverse possession under Section 38 of the Limitation of Actions Act. Proof is an evidentiary question for trial, not a defect on the pleadings.
Legal principles established
#- A preliminary objection must raise a pure point of law on assumed pleaded facts and cannot be raised where facts require ascertainment or evidence.
- A decision rendered by a court lacking jurisdiction is a nullity and cannot ground a plea of res judicata.
- A plea of res judicata, though a point of law, depends on undisputed factual material including the records of the previous cases.
Court orders
#- 1.The Notice of Preliminary Objection dated 1st September 2026 is hereby dismissed.
- 2.The Originating Summons dated 28th July 2026 shall proceed to a hearing on its merits.
- 3.The Notice of Motion dated 24th July 2026 shall be dealt with separately in accordance with the directions of the Court.
- 4.Costs of the Preliminary Objection shall be in the cause.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Relief refused
#Injunctive orders sought in the Notice of Motion dated 24th July 2026
Court directed the Motion be dealt with separately rather than granting injunctions at this stage
Costs
Costs of the Preliminary Objection shall be in the cause.
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.
a) The Notice of Preliminary Objection dated 1st September 2026 is hereby dismissed.
b) The Originating Summons dated 28th July 2026 shall proceed to a hearing on its merits.
d) Costs of the Preliminary Objection shall be in the cause.
a decision rendered by a court lacking jurisdiction is a nullity and cannot ground a plea of res judicata.
Whether the Applicants will successfully prove these elements is an evidentiary question for trial, not a defect on the face of the pleadings.
Issues in the judgment
#Karata Ernest citation years conflict: Civil Revision No. 10 of 2020 but reported as [2010] TZCA 30.
Cause title lists plaintiffs as 'PLAINTIFF / APPLICANT' and defendants as 'DEFENDANT / RESPONDENT' despite no appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tabitha Atieno Omolo & 2 Others v Agnes Anyango Akumu & 2 Others", Case Analysis (2026). ELC. NUMBER E057 OF 2026 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6078/eng@2026-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.