Mutiso & 2 others v Kioko & 4 others

d) An order directing the 3rd Defendant to remove all permanent/temporary structures obstructing the pathway on plot no. MAKUENI/UNOA/509 within 60 days upon judgment failure which a demolition order do issue and the same be enforced by the OCS Makueni Police Station. e) An order of permanent injunction restraining the 1 st and 2nd Defendants by themselves, employees, agents, servants, children, their family members and/or whomever claiming from them from trespassing, entering, subdividing, selling, alienating, cultivating, farming, demolishing, building or in any way interfering with the 1st Plaintiff’s quiet possession, occupation, control, use and peaceful enjoyment of a plot measuring 60ft by 150ft on plot no. MAKUENI/UNOA/509. f) Special damages of Kshs.250,000/=. g) General damages for trespass. h) Costs and interest of the suit. i) Any other relief that this Honourable court deems fit to grant. 2. The 3rd Defendant filed its Statement of Defence on 3 rd February, 2026 denying the Plaintiffs’ claims while also denying the jurisdiction of the court to hear and determine the suit. 3. Subsequent to the filing of the suit, the 3rd Defendant filed a Notice of Preliminary Objection dated 27th February, 2026. One ground of objection was raised namely:1) The suit herein against the 3rd Defendant has been brought prematurely as the Plaintiffs have not exhausted the doctrine of exhaustion. 4. The preliminary objection was disposed of by way of written submissions. 5. In the 3rd Defendant’s submissions dated 13th March, 2026, Counsel contended that the Plaintiffs are the owners of a distinct portion of land within land Parcel ELC NO. E034 OF 2025 2|Page

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No. MAKUENI/UNOA/509 whereas the 3rd Defendant owner of a land portion measuring 100ft by 100ft within the same property. It was further argued that the Plaintiffs wish to rely on a private survey report dated 17 th September, 2025 and a certified copy of the area map for the year 2015. On the other hand, the 3 rd Defendant relies on a copy of the certified area map by the County Surveyor Makueni County dated 17th September, 2025. 6. Counsel was of the view that since the two area maps provided by the parties have discrepancies in the distances between their respective properties, then the Plaintiffs ought to have approached the Land Registrar under Section 18 (2) of the Land Registration Act. Citing the case of Willis Ocholla v Mary Ndege [2016] eKLR, Counsel submitted that the court has no jurisdiction to determine a boundary dispute without redress having been sought first from the Land Registrar. It was urged that the suit against the 3 rd Defendant ought to be dismissed with costs. 7. In the Plaintiffs’ submissions dated 28th April, 2026, Counsel submitted that the Plaintiffs’ suit against the 3rd Defendant is that it has erected both permanent and temporary structures within the 1st Plaintiff’s land, blocked the pathway leading to the Plaintiff’s land causing members of the public to trespass on the Plaintiff’s land. It was submitted that the aforesaid facts are not admitted by the 3rd Defendant therefore rendering the claim a matter based on contested facts which need to be determined on the evidence of either party. Counsel urged the court to dismiss the preliminary objection with costs. 8. One issue for determination arises from the present application namely: a) Whether the preliminary objection herein is merited? 9. The law on preliminary objections is settled. A preliminary objection must be on a pure point of law. Sir Charles Newbold, P. coined an apt description of what constitutes a preliminary objection in Mukisa Biscuit Manufacturing ELC NO. E034 OF 2025 3|Page

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Co. Ltd v West End Distributors Ltd [1969] EA 696 (at page 700) wherein the learned judge held as follows: “The first matter relates to the increasing practice of raising points which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurrer. It raises a 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 had 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 the issue. The improper practice should stop.” 10.In Oraro v Mbaja [2005] eKLR, J.B. Ojwang J. (as he then was) described it as follows: “I think the principle is abundantly clear. “A Preliminary Objection” correctly understood is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. An assertion which claims to be a Preliminary Objection and yet it hears 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.” 11.The 3rd Defendant’s preliminary objection is grounded on the assertion that the Plaintiffs have filed the suit prematurely without approaching the Land Registrar first in accordance with Section 18(2) of the Land Registration Act for a resolution of a boundary dispute. 12.Section 18(2) of the Land Registration Act outlines as follows: ELC NO. E034 OF 2025 4|Page

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‘The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section.’ 13.Under paragraphs 8 and 9 of the Plaint, it was pleaded that the 1 st Plaintiff purchased a plot measuring 60ft by 150ft from James Muia Kimilu, who is the registered proprietor of the suit property land Parcel No. MAKUENI/UNOA/509. It was further contended that the registered proprietor died before he could excise and transfer the land to the 1st Plaintiff. 14.On the other hand, the 3rd Defendant alleges under paragraph 4 of its statement of defence that it occupies a portion of the suit property measuring 100ft by 100ft. At paragraph 11 of the Plaint, it has been contended that the 3 rd Defendant has put up both permanent and temporary structures encroaching into the 1st Plaintiff’s land and causing members of the public to trespass into the land due to limited access pathway. 15.On the basis of the foregoing facts, it is clear that subdivision and transfer of the respective portions of land occupied by the 1 st Plaintiff and the 3rd Defendant has not been done and concluded. In order to invoke the provisions of Section 18 (2), parties must be registered proprietors of the land they currently occupy. As defined under Section 2 of the Land registration Act 2012, registration entails the bringing of an interest in land or lease under the provisions of the Act and includes making of an entry, note or record in the land register. 16.Accordingly, on the basis of the above considerations, the alleged acts of trespass are contested facts which are outside the purview of the Land Registrar and ultimately unavailable for determination through a preliminary objection. ELC NO. E034 OF 2025 5|Page

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17.In the end, the preliminary objection herein fails to meet the threshold set out in the decision of Mukisa Biscuit (supra). It does not raise a pure point of law. It is devoid of merit and is hereby dismissed with costs. ............................................... HON. E. O. OBAGA, FCIArb JUDGE RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 17TH DAY OF SEPTEMBER, 2026. Ms. Kabuu for 3rd Defendant Ms. Lokol for Mr. Masika for 1st and 2nd Defendants Court assistants – Kilonzo & Musyoki ELC NO. E034 OF 2025 6|Page

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