Mangi & 5 others v Noor

Mangi & 5 others v Noor (Enviromental and Land Originating Summons E003 of 2024) [2024] KEELC 14173 (KLR) (17 December 2024) (Ruling) Neutral citation: [2024] KEELC 14173 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MALINDI ENVIROMENTAL AND LAND ORIGINATING SUMMONS E003 OF 2024 FM NJOROGE, J DECEMBER 17, 2024 BETWEEN CHARO KARISA MANGI & 5 OTHERS & 5 OTHERS & 5 OTHERS & 5 OTHERS & 5 OTHERS & 5 OTHERS .................................................... PLAINTIFF AND MOHAMED OSMAN NOOR ............................................................... DEFENDANT RULING 1. The preliminary objection dated 2/8/2024 has been led by the defendant. The preliminary objection is premised on two grounds, namely: a. That the present suit is res sub judice and also res judicata Malindi ELCC 286 of 2016, Petition 5 of 2022, ELC 385 of 2022; b. The OS does not meet the threshold for adverse possession as set out under the law. 2. I have considered the two limbs of preliminary objection as well as the submissions led by the parties. 3. Regarding the rst ground this court is of the view that it would not be possible to verify the claims by the objector to enable the court determine such an objection unless the court went out of the pleadings before it and sought out other information from the mentioned suit in which case it would cease being a preliminary objection within the meaning of Mukisa Biscuit Manufacturing Co Ltd Vs West End Distributors 1969 EA 46. Mukisa (supra) is authority for the rule that an objection is usually argued on the basis that all the facts pleaded are correct, must be one that raises a pure point of law and it ceases being a preliminary objection is fact has to be ascertained. 4. On the second limb, for this court to establish whether the OS has attained the threshold of adverse possession, a hearing of the evidence of the parties must take place. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14173/eng@2024-12-17 1

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