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ELCDismissedNot stated in the judgment

Joseph & 2 others v Musau & another (Environment and Land Case E022 of 2021) [2025] KEELC 5350 (KLR)

Environment and Land Court
17 July 2025
541 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a landowner's attempt to strike out a property dispute, confirming preliminary objections cannot be used where facts must first be established.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (Obaga J) determines a Notice of Preliminary Objection dated 21st August 2024 raised by the 1st Defendant on three grounds: that the suit offends Section 18(2) of the Land Registration Act, which bars courts from entertaining boundary disputes over registered land unless the boundaries have first been determined under that section; that the suit offends Section 29 of the Land Adjudication Act, an appeal to the Minister being challengeable only by judicial review; and that the suit is an abuse of court process and should be struck out with costs. The court was to dispose of the objection by written submissions; the 1st Defendant filed submissions but the 3rd Plaintiff did not, despite being granted 14 days on 27th February 2025. Applying Nitin Properties Ltd v Singh Kalsi & Another, the court held that a preliminary objection must be a pure point of law argued on the assumption that the other side's pleaded facts are correct, and cannot be raised where facts must be ascertained. Perusing the file, the court found no decision by the Minister, only a committee decision under Section 20 of the Land Adjudication Act, with no appeal to the arbitration board under Section 21; whether a Ministerial decision existed was therefore a factual question unfit for a preliminary objection. Further, the pleadings showed the 1st Defendant claimed to have purchased entire plots 1625 and 1662 from the 3rd Plaintiff in 1997, so no boundary dispute arose to oust jurisdiction under Section 18(2). The preliminary objection was dismissed with no order as to costs.

Questions the Court framed

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

  1. 1.Whether the suit offends Section 18(2) of the Land Registration Act as a boundary dispute not determined in accordance with that section
  2. 2.Whether the suit offends Section 29 of the Land Adjudication Act in respect of an appeal to the Minister amenable only by way of judicial review
  3. 3.Whether the suit is an abuse of the court process and ought to be struck out

Key legal issues

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01

Whether a preliminary objection can lie where determination requires ascertainment of facts

Holding

It cannot; the objection was wrongly raised because there was no evidence of a Minister's decision and facts had to be ascertained

Reasoning

Relying on Nitin Properties Ltd v Singh Kalsi, the court held that a preliminary objection must be a pure point of law. On the file there was no decision by the Minister, only a committee decision under Section 20, and no appeal to the arbitration board under Section 21. Whether a Ministerial decision existed was a factual question, making the objection incompetent.

p. 2
02

Whether Section 18(2) of the Land Registration Act ousts the court's jurisdiction

Holding

No; on the pleadings the dispute was not a boundary dispute since the 1st Defendant claimed to have purchased the entire plots

Reasoning

The pleadings showed the 1st Defendant claimed to have purchased the entirety of plots 1625 and 1662 from the 3rd Plaintiff in 1997. If so, no boundary dispute arose to trigger Section 18(2) of the Land Registration Act, and the objection failed on its own pleaded assumptions.

p. 2

Legal principles established

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  • A preliminary objection raises a pure point of law on assumed pleaded facts and cannot be raised where facts must be ascertained or judicial discretion exercised

Court orders

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  1. 1.The preliminary objection is dismissed with no order as to costs

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 of the Environment and Land Court; preliminary objection under Section 18(2) of the Land Registration Act and Section 29 of the Land Adjudication Act

Relief refused

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Striking out of the suit as sought by the 1st Defendant

The preliminary objection required ascertainment of facts and had no merit

p. 2

Costs

Dismissed with no order as to costs

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.

a preliminary objection raises a pure point of law, which is argued on the assumption that all the acts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is sought is the exercise of judicial discretion.
p. 2Definition and limits of a preliminary objection
I therefore find no merit in the preliminary objection which is hereby dismissed with no order as to costs. It is so ordered.
p. 2Final orders - dismissal of preliminary objection

Issues in the judgment

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minor

Case title, case number and neutral citation are not provided in the judgment text

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph & 2 others v Musau & another (Environment and Land Case E022 of 2021) [2025] KEELC 5350 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5350/eng@2025-07-17

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