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ELCOtherNot stated in the judgment (Originating Summons, further amended 21st November 2023)

Mburu v Kwale County Government & 2 others (Enviromental and Land Originating Summons E007 of 2023) [2025] KEELC 3295 (KLR)

Environment and Land Court
8 April 2025
5,428 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that whether land is public property can only be decided at a full trial, not through shortcuts, so the landowner's adverse possession case proceeds to hearing.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kwale (Naikuni J) on a Notice of Preliminary Objection and Grounds of Opposition dated 25th October 2024 filed by the Ministry of Tourism & Wildlife and the Attorney General, the 2nd and 3rd Defendants, in an adverse-possession suit brought by Originating Summons under Sections 17, 18, 37 and 38 of the Limitation of Actions Act and Order 37 Rule 30 of the Civil Procedure Rules. The Plaintiff, Samuel Mwangi Mburu, sought declaration of ownership by adverse possession of two plots measuring 20 x 15 ft each hived from parcel Kwale/Diani Complex/33, claiming occupation since 1987, allegedly under a Letter of Offer from the 2nd Defendant. The 2nd and 3rd Defendants objected that the land was public land lawfully held by the Ministry of Tourism under a 33-year leasehold, that Section 41 of the Limitation of Actions Act bars adverse-possession claims against government land, and that a licence cannot ripen into adverse possession, urging striking out of the suit. The 1st Defendant did not oppose the objection. Framing three issues, the court applied Mukisa Biscuits, Oraro v Mbaja, Hassan Ali Joho and Samuel Kamau Macharia on the nature of preliminary objections and jurisdiction, and held that whether the suit land is public land and whether adverse possession can accrue against the Government are matters of fact for full trial. The court dismissed the preliminary objection, awarded its costs to the Plaintiff, and directed a pre-trial conference on 12th June 2025 with hearing on 2nd July 2025.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Preliminary Objection dated 25th October 2024 by the 2nd and 3rd Defendants/Respondents meets the fundamental threshold of a preliminary objection based on law and precedents
  2. 2.Whether the further amended originating summons herein is merited
  3. 3.Who will bear the costs of the preliminary objection?

Key legal issues

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01

Whether the preliminary objection met the threshold of a proper preliminary objection

Holding

The objection raised issues of fact (whether the suit land is public/government land) that cannot be resolved as a pure point of law; the objection was competent as a jurisdictional challenge but ultimately unsustainable.

Reasoning

The court reviewed the classical definition in Mukisa Biscuits and Oraro v Mbaja, reaffirming that a preliminary objection must consist of a point of law pleaded or arising by clear implication from the pleadings, argued on the assumption that all pleaded facts are correct. The defendants' objection that the land was public land under Article 62(1) and Section 41 of the Limitation of Actions Act depended on ascertaining facts such as the nature of the title, occupancy and the lease, which require trial.

p. 9
02

Whether the further amended originating summons is merited (whether the objection has merit)

Holding

The objection failed; the dispute over whether the suit property is public land and whether adverse possession can lie against the Government must be determined at a full trial.

Reasoning

The official search indicated the proprietor as the Ministry of Tourism under a 33-year leasehold from 1999, suggesting government land, but the court held these were questions of fact requiring examination of evidence at trial. The parties' constitutional rights to access to justice and a fair hearing required the issues to be ventilated at full trial rather than disposed of summarily on a preliminary objection.

p. 10
03

Who bears the costs of the preliminary objection

Holding

Costs of the objection were awarded to the Plaintiff/Applicant against the 2nd and 3rd Defendants, costs following the event under Section 27 of the Civil Procedure Act.

Reasoning

The court noted that costs are discretionary and follow the event unless the court orders otherwise. Since the 2nd and 3rd Defendants did not succeed in prosecuting the preliminary objection, the Plaintiff was entitled to the costs of the objection.

Legal principles established

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  • A preliminary objection must raise a pure point of law and cannot rest on facts that require ascertainment at trial; where issues turn on disputed facts, the objection is not sustainable.
  • Jurisdiction flows from the Constitution or legislation and a court cannot arrogate to itself jurisdiction exceeding that conferred by law.

Court orders

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  1. 1.The Preliminary Objection dated 25th October 2024 be and is hereby dismissed
  2. 2.There be a mention on 12th June, 2025 for a Pre-Trial Conference under Order 11 and taking of directions for disposal of the suit under Order 37 Rules 13, 16 and 18 of the Civil Procedure Rules, 2010, with hearing of the suit scheduled on 2nd July, 2025 by consensus of the parties
  3. 3.The costs of the Preliminary Objection to be awarded to the Plaintiff/Applicant and borne by the 2nd and 3rd Defendants/Respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction under Sections 17, 18, 37 & 38 of the Limitation of Actions Act (Cap. 22) and Order 37 Rule 30 of the Civil Procedure Rules, 2010

Relief refused

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Striking out/dismissal of the suit as sought by the 2nd and 3rd Defendants via the Preliminary Objection and Grounds of Opposition

The issues raised in the objection are matters of fact to be determined at full trial, not pure points of law; the objection failed

p. 10

Costs

The costs of the Preliminary Objection to be awarded to the Plaintiff/Applicant and borne by the 2nd and 3rd Defendants/Respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That the Preliminary objection dated 25th October 2024 be and is hereby dismissed.
p. 11Disposition - dismissal of preliminary objection
That the costs of the Preliminary Objection to be awarded to the Plaintiff/Applicant and borne by the 2nd and 3rd Defendants/Respondents.
p. 11Costs of the objection
I strongly hold that the issues raised from the objection are mainly matters of facts to be ably deliberated during a full trial. Hence, by and large, the objection is not sustainable.
p. 10Objection unsustainable - factual issues reserved for trial
That for expediency sake there be a mention on 12th June, 2025 for purposes of conducting a Pre – Trial conference under the provision of Order 11 and taking direction for the disposal of the Suit filed through the Originating Summons
p. 11Directions for pre-trial conference and hearing
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.
p. 9Definition of a preliminary objection (Mukisa Biscuits)

Issues in the judgment

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minor

The court cites 'Articles 25 (c), 48, 50 (1) & (2) and 159 (1) & (2) of the Constitution of Kenya, 2020' - the year is misstated (should be 2010), and the plaintiff's submissions misdate their own written submissions as 24th February 2024 while opposing an objection dated 25th October 2024/2025 inconsistently.

minor

Internal inconsistency in dates of the preliminary objection: referred to as dated 25th October 2024 in most of the judgment but as 'dated 25th October, 2025' in the plaintiff's submissions section.

minor

The judgment contains a contradiction as to the identity of the suit property: the pleadings describe it as Kwale/Diani Complex/33, while the defendants' submissions assert it is 'LR. No 209/11543 and LR. No. 209/11546', and the official search shows the proprietor as Ministry of Tourism under leasehold - the court notes the public/private character is a factual issue for trial.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mburu v Kwale County Government & 2 others (Enviromental and Land Originating Summons E007 of 2023) [2025] KEELC 3295 (KLR)", Case Analysis (2025). Not stated in the judgment (Originating Summons, further amended 21st November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3295/eng@2025-04-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.