Oluoch v Bunde (Being Sued in his own Capacity and in his Capacity as the Administrator of the Estate of Bunde Ocham) & another (Environment and Land Case E029 of 2025) [2026] KEELC 3125 (KLR)

Defendant/Applicants trespassed onto his land and interfered with the fence thereon by cutting down trees. His sough the following reliefs: a) An order declaring that the estate of Bunde Ocham (deceased) holds a portion of Land Parcel Number Kanyada/Kotieno/Katuma'A'/506 measuring approximately 0.28 Ha in trust for the Plaintiff. b) Pursuant to prayer (a), an order do issue to the Land Registrar and Land Surveyor to excise a portion of Land Parcel Number Kanyada/Kotieno/Katuma 'A'/506 measuring approximately 0.28 Ha and register it in favour of the Plaintiff. c) Alternatively, an order declaring that the Plaintiff has acquired registrable interest in the said portion of Land Kanyada/Kotieno/Katuma approximately 0.28 Ha Parcel 'A/506 by way Number measuring of adverse possession. 2|Page HOMA BAY ELC CASE NO. E029 OF 2025 – RULING D.O.D 28.4.2026

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d) Consequently, an order directing the 1st Defendant in his capacity as administrator of the estate of Bunde Ocham (deceased) to transfer t h e portion of Kanyada/Kotieno/Katuma Parcel Number 'A'/506 measuring approximately 0.28 Ha belonging to the Plaintiff, to the Plaintiff, failure to which the Court Administrator of this Honorable Court be directed so to do. e) Damages and mesne profits for trespass f) Costs of the suit and interest g) Any other relief as the court may deem fit to grant The Preliminary Objection 3. The Defendant/Applicants filed two versions of a Notice of Preliminary Objection. Both were dated 16th January 2026. In one version, the grounds were: a) THAT the Plaintiff herein has no locus standi to bring this suit as it collides with the legal principle of lis pendens (Civil Procedure Act section 6) as the same 3|Page HOMA BAY ELC CASE NO. E029 OF 2025 – RULING D.O.D 28.4.2026

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claims were brought vide their application for objection on Homa Bay succession cause numberE021 OF 2024 In the Matter of The Estate of Silfano Bunde Ocham Alias Bunde Ocham (Deceased), Daniel Ogendi Oluoch (objector/Applicant) versus Namaan Otieno Bunde (Petitioner/Respondent) in which the same was stayed for the Applicants to approach court in the right form and forum. b) THAT the suit/plaint as drafted is misconceived and an abuse of the process of this honourable court it has been brought out of time as per limitation of actions section seven (7) read together with the locus classicus Binga Zubati V Kobus Umbra on key principles on proving adverse possession being when the right to action accrued not just when the dispute arose; in which the claim sought has horrendously failed as having been brought 36 (thirty six) years after the right to claim accrued (the alleged purchase happened in 1987 thus when the right to claim accrued). 4|Page HOMA BAY ELC CASE NO. E029 OF 2025 – RULING D.O.D 28.4.2026

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c) THAT this honourable court has no jurisdiction to hear and determine this matter as it cannot be afforded the exceptions of limitation of actions act section 38. d) THAT the plaint herein has been made in bad faith and that the Applicant possession of has never the enjoyed peaceful land being subject KANYADA/K/KATUMA “A” 506. e) THAT the sale agreement attached herein does not have any national identification documents to authenticate that parties alleged to be present were present save for the said purchaser and Plaintiff herein. f) THAT the Applicant has failed to fulfill the prerequisite conditions to grant of the said orders of adverse possession which include and not limited to: i. The Applicant has lived and occupied the land in exclusion of others which is not the case as the land is vacant at the moment exclusive of the small farming done by the Defendants in the past therein. 5|Page HOMA BAY ELC CASE NO. E029 OF 2025 – RULING D.O.D 28.4.2026

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ii. The Applicant has occupied the subject land without the consent of the owner in which the Applicant has never been in occupation however some fencing was done by the Defendants sometimes in the year of our Lord two thousand and nineteen (2019). iii. The stay must have been uninterrupted and continuous for a period of at least 12 years in which the is not the case as the Plaintiff has never occupied the land at any point. iv. The Applicant must not only show issue of facts but in addition there must be a clear intention to hold the subject land adversely and under claim of right; de facto use and de facto occupation must be shown in which the Plaintiff has not done so by showing any development or activities done on the land. v. The owner of the land should not be known by the Applicant or the occupier who intends to claim for 6|Page HOMA BAY ELC CASE NO. E029 OF 2025 – RULING D.O.D 28.4.2026

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the adverse possession in which the Plaintiff has not quantified the same in his documents. g) THAT the Plaintiff has a certificate of search in their bundles of documents showing that the land was held in ownership by their deceased father (SILFANO BUNDE OCHAM) since adjudication in 1994 to date and the same has not been challenged in any court of law. h) THAT the Plaintiff has failed to prove to this case the exact date when he commenced occupying the subject land and between which periods the occupation was ever smooth, continuous and uninterrupted. i) THAT the Applicant herein does not satisfy the principles governing matters for grant of adverse possession. 4. In the other version of the Objection, the grounds were set out in the following terms: a) THAT the Plaintiff herein has no locus standi to bring this suit as it collides with the legal principle of lis pendens (Civil Procedure Act section 6). 7|Page HOMA BAY ELC CASE NO. E029 OF 2025 – RULING D.O.D 28.4.2026

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b) THAT the suit/plaint as drafted is misconceived and an abuse of the process of this honourable court it has been brought out of time As Per Limitation of Actions Section Seven (7) c) THAT this honourable court has no jurisdiction to hear and determine this matter as it cannot be afforded the exceptions of limitation of actions act section 38. 5. In both preliminary objections, the Defendant/Applicants prayed that Plaintiff/Respondent’s suit be dismissed with costs. The Parties’ Submissions 6. The preliminary objections were canvassed by way of written submissions. The Defendant’s/Respondents filed their submissions dated 12th February 2026. They referred to the land sale agreement that the Plaintiff/Respondent alleged to have entered into with their father, one Bunde Ocham who is now deceased. They submitted that, even though the Plaintiff avers that the entered the said land sale contract in the year 1987, the said agreement was entered into before the first 8|Page HOMA BAY ELC CASE NO. E029 OF 2025 – RULING D.O.D 28.4.2026

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adjudication of the land in question and that the first title thereof was produced in the year 1994. The Defendant/Applicants maintained that the Plaintiff/Respondent did not protest the production of the aforesaid title. 7. In addition to the foregoing, the Defendant/Applicants submitted that the alleged seller, Bunde Ocham, lived on the suit parcel until 12th July 2002, which period of time amounted to 15 years. For all this period, they submitted that the Plaintiff/Respondent never acted to possess, occupy or have the title devolve to him from the vendor. The Defendant/Applicant submitted that the Plaintiff/Respondent only acted on January 24th 2024, by filing a miscellaneous succession after they had initiated the succession process for their father’s estate. Hence, they submitted that the Plaintiff/Respondent had sat on his rights for 31 years. 8. The Defendants/Applicants also maintained that they fenced the land after getting the first grant in 2024. They stated that there are no fixtures on the property and that they periodically cultivated the land. 9|Page HOMA BAY ELC CASE NO. E029 OF 2025 – RULING D.O.D 28.4.2026

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9. Having presented the above background, the Defendants/Respondents submitted on four key issues which were centered around the Plaintiff’s locus standi to bring the suit as well as the jurisdiction of the court to determine the matter; limitation of time pursuant to the limitation of actions Act; viability of claiming purchaser’s interest alongside adverse possession; and the viability of sale agreements on land falling under the land control Act 1967 unregistered for over 30 years. 10. On the issue of locus standi, the Defendant/Applicants submitted that the claims in the instant matter are similar to the claims raised in the Plaintiff/Respondent’s application for objection in Homa Bay succession cause number E021 of 2024 in the Matter of the Estate of Silfano Bunde Ocham Alias Bunde Ocham (Deceased). The said application was between Daniel Ogendi Oluoch (objector/Applicant) and Namaan Otieno Bunde (Petitioner/Respondent). The Defendant/Applicants stated that the said application was stayed to enable to the Applicants’ approach court in the right form and forum. 10 | P a g e HOMA BAY ELC CASE NO. E029 OF 2025 – RULING D.O.D 28.4.2026

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11. The Respondents/ Applicants thus submitted the act of bringing the instant suit runs contrary to the lis pendens doctrine and amounts to forums shopping. 12. On the issue of time limitation, the Respondents/ Applicants submitted that the Plaintiff/Respondent brought an action for the recovery of the suit property on 23rd January 2023, which period is over 30 years. They maintained that the time for claiming the suit parcel as purchaser had since been extinguished. 13. As to whether the Plaintiff/Respondent could claim the suit property as a purchaser alongside adverse possession, the Defendants/Applicants submitted that adverse possession interest ought to be claimed on its own not alongside purchasers’ interest. The Defendant/Applicants reasoned that claiming his interests as a purchaser alongside a claim for adverse possession would defeats the reason as to why a bona fide purchaser would be a squatter in his own land only to claim a squatter’s 12 years later. Reliance was placed on Songoi v Songoi (Civil Appeal 110 of 2016) [2020] KECA 11 | P a g e HOMA BAY ELC CASE NO. E029 OF 2025 – RULING D.O.D 28.4.2026

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942 (KLR) (31January 2020) (Judgment) 43 to buttress this position. 14. On whether the sale agreement over land registered under the Land Control Act 1967 was still valid after 30 years, the Defendant/Applicants submitted on the negative. They relied on section 6 of the Land Control Act to argue that where consent of the land control board had not been obtained, the said transaction would be void. They buttressed this position by relying on among other decisions, Elizabeth Cheboo v Mary Cheboo Gimnyika, CA No. 40 of 1978 (Kisumu) and Omuse Onyapu v Lawrence Opukakapla, CA No. 149 of 1992 (sic). 15. The Defendant/Applicants concluded that the Plaintiff/Respondent should not be allowed and prayed that the same be dismissed with costs. 16. The Plaintiff/Respondent filed his submissions dated 27 th February 2026. He identified four issues for determination, being whether the Plaintiff’s suit is merited; whether the suit offends the principle of lis pendens; whether the plaint is statute barred pursuant to section 7 of the Limitation of Actions 12 | P a g e HOMA BAY ELC CASE NO. E029 OF 2025 – RULING D.O.D 28.4.2026

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act; and whether the Court lacks jurisdiction to determine the suit pursuant to Section 38 of the Limitation of Actions Act. 17. On whether the preliminary objection is merited, the Plaintiff/Respondent laid a basis on the law governing preliminary objections by citing the locus classicus, Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors [1969] EA 696 where it was held that a preliminary objection should raise pure points of law. The Plaintiff/Respondent equally cited David Karobia Kiiru vs Charles Nderitu Gitoi & Another (2018) eKLR, where it was emphasized that a preliminary objection cannot be raised where any fact has to be ascertained or in circumstances where what is sought is the exercise of the court’s discretion. 18. On whether the suit offends the principle of lis pendens, the Plaintiff/Respondent submitted that he objected to the confirmation of grant in the estate of Bunde ocham, that is Homa bay succession cause no E021 of 2024 on the ground that he had an interest in the said estate and was never informed of the succession proceedings. He submitted that the Defendant/Respondents refuted that the estate of the late 13 | P a g e HOMA BAY ELC CASE NO. E029 OF 2025 – RULING D.O.D 28.4.2026

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Bunde Ocham owed him, which in turn raised propriety issues on the land. In any event, the Plaintiff/Respondent submitted that the succession court does not have jurisdiction to determine issues relating to land ownership. The Plaintiff/Respondent relied on re estate of jane Wambui Mbugua (deceased) [2022] to support the aforementioned position and urged this court to find that the instant suit is not lis pendens. 19. As to whether the suit is statue barred by virtue of section 7 of the limitation of actions act, the Plaintiff/Respondent submitted that his claim does not seek the recovery of land since he is in occupation of the said suit property. He equally submitted that, should his possession of the said land be disputed by the Defendant/Applicants then the said issue is not a matter of law but one of fact. 20. On the issue of whether the court lacks jurisdiction on account of section 38 of the Limitation of Actions Act, the Plaintiff/Respondent submitted that he has been in occupation of the suit property for a period exceeding twelve years hence an adverse possessor. In any event, he stated that the Defendants/Applicants have rejected the land sale agreement 14 | P a g e HOMA BAY ELC CASE NO. E029 OF 2025 – RULING D.O.D 28.4.2026

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between himself that their deceased father hence adverse possession claim. 21. The Plaintiff/Respondent submitted that the has been in open, notorious and unlicensed possession of the suit land since 1987 to date. This period of possession, he submitted, is enough proof that this court has jurisdiction to determine the suit, and urged the court to consider this time duration and find that it has jurisdiction. Issues, Analysis and Determination 22. The issues that arise for determination in the instant preliminary objection are: whether the preliminary objection has merit; and who should bear the costs of the application. 23. The court has carefully considered the preliminary objection filed by the Defendants/ Applicants, the plaint filed by the Plaintiff/Respondent, the parties’ submissions as well as the applicable law. 24. The principles governing preliminary objections were set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors. (1969) EA 696 where the court held that: 15 | P a g e HOMA BAY ELC CASE NO. E029 OF 2025 – RULING D.O.D 28.4.2026

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“A Preliminary Objection consists of appoint of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as preliminary point may dispose of the suit. example is an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. A Preliminary Objection is in the nature of that used to be called a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.’’ 25. Moreover, in Odeny (Formerly Victor Onyango Odeny) v Attorney General [2024] KEHC 5627 (KLR) (Petition (Constitutional E415 of 2022) and Human Rights) (23 May 2024) (Ruling) the court cited Oraro v Mbaja [2005] 1KLR and observed that: 16 | P a g e HOMA BAY ELC CASE NO. E029 OF 2025 – RULING D.O.D 28.4.2026

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‘‘19. Furthermore, the observation in the Oraro vs. Mbaja Court stated as follows: [2005] 1 KLR offers significant insight. The court stated as follows: The “A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise demurrer. It raises a pure point of law, which is argued on the assumption that all facts pleaded by the opposite side are correct. It cannot be raised if any fact is to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion confuse issues and this improper practice should stop… The principle is abundantly clear. A “preliminary objection” correctly understood, is now well defined as, and declared to be, a point of law which 17 | P a g e HOMA BAY ELC CASE NO. E029 OF 2025 – RULING D.O.D 28.4.2026

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must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point… Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence…….” (emphasis mine) 20. From the reading of the above authorities, the essential characteristics of a preliminary objection can be succinctly stated as follows: i. It must be on a pure point of law, not factual matters. 18 | P a g e HOMA BAY ELC CASE NO. E029 OF 2025 – RULING D.O.D 28.4.2026

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ii. It is argued on assumption that all facts pleaded by the party against whom that objection is targeted are correct. iii. If any fact has to be ascertained or if what is sought in the objection is an exercise of judicial discretion, it cannot be raised. iv. If successful, it must be capable of disposing the suit without the need of proceeding to full trial. 26. Having so established, I will proceed and examine each ground raised by the Respondents/Applicants against the above tests. The Respondents/Applicants raised a preliminary objection premised on several grounds. Their first ground is that the suit filed by the Plaintiff/Respondents should fail for the reason that there is another suit, being Homa Bay succession cause no. E021 of 2021, in the Matter of the Estate of Silfano Bunde Ocham alias Bunde Ocham. The Plaintiff/Respondent clarified that the matter in question relates to succession whereas the instant matter relates to proprietorship of the land in question. Even so, this ground calls 19 | P a g e HOMA BAY ELC CASE NO. E029 OF 2025 – RULING D.O.D 28.4.2026

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for examination of evidence to ascertain the validity of the issues raised by the Respondents/Applicants. Accordingly, this ground does not raise a pure point of law. 27. Th second ground as presented in the long version of the preliminary objection is that the suit is time barred contrary to Section 7 of the Limitation of Actions Act. The Defendants/Applicants submitted that the Plaintiff/Applicant seeks to recover land after the 12-year limitation period imposed by Section 7 of the Limitation of Actions Act. In response, the Plaintiff /Respondent submitted that he is not seeking to recover land, since he has been in occupation of the suit land occupation of the land since 1987 when he purchased the same from the Defendant/Applicant’s father. The Defendants/Applicants also maintain there are no fixtures on the property and they cultivate the said property occasionally. 28. The court notes the issue of occupation, more so the period of the alleged occupation by either party is contested. As such, this ground does not constitute a pure point of law. The same reasoning applies to the ground that the Plaintiff/Applicant has never enjoyed peaceful possession of the suit property as well 20 | P a g e HOMA BAY ELC CASE NO. E029 OF 2025 – RULING D.O.D 28.4.2026

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as the ground that the Plaintiff/Respondent has failed to fulfil the prerequisite conditions for the grant of the orders sought, that is, adverse possession. 29. The Defendants/Applicants stated the sale agreement that the Plaintiff/Respondent is relying on does not identity of those who witnessed the said agreement. Respectfully, the court finds that this ground does not equally constitute a pure point of law as it calls upon the court to investigate facts. The ground is not therefore one that can be said to be a pure point of law. 30. The Defendants/Respondents also stated the Plaintiff has a certificate of search in their bundles of documents showing that the land was held in ownership by their deceased father, one Silfano Bunde Ocham since adjudication in 1994 to date and the same has not been challenged in any court of law. Like the other grounds, outlined above, this ground also calls for examination of facts and is therefore not a preliminary point of law properly so called. 31. The ground that the Plaintiff/Respondent has failed to prove to this case the exact date when he commenced occupying the subject land and between which periods the occupation was 21 | P a g e HOMA BAY ELC CASE NO. E029 OF 2025 – RULING D.O.D 28.4.2026

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ever smooth, continuous and uninterrupted. Evidence must be led as to the date of occupation unless it was specifically pleaded and admitted by the other party. Moreover, about the residence being smooth and uninterrupted the law is clear that one has to adduce evidence to prove the fact. 32. The upshot of the foregoing is that all the grounds of the Preliminary Objection, whether in the long or short version, were factual points that called for evidence to be led beyond the pleadings to prove them. In any event, they were argumentative too. Thus, the preliminary objection is not meritorious and is hereby dismissed with costs to the Plaintiff. 33. The Applicant shall now have fourteen (14) days to file a Supplementary Affidavit if need be. Parties to file trial bundles after that thirty (30) days of closure of pleadings. The Originating Summons be mentioned to confirm compliance with Order 11 of the Civil Procedure Rules, on 15th June 2026. 34. Orders accordingly. Ruling dated, signed and delivered virtually via the Teams Platform this 28th day of April 2026. Hon. Dr. iur Nyagaka 22 | P a g e HOMA BAY ELC CASE NO. E029 OF 2025 – RULING D.O.D 28.4.2026

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Judge In the presence of, Ms. Adingo Advocate for the Plaintiff Ms. Anne Charlotte Advocate for the Defendants (present a few minutes ago but now) absent (NB: Ms Adingo informs Court that Ms. Elly has moved to attend a matter in the High Court and asks for four weeks to comply by filing a Replying affidavit). 23 | P a g e HOMA BAY ELC CASE NO. E029 OF 2025 – RULING D.O.D 28.4.2026

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