Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNotice of Preliminary Objection dated 17/01/2024 and Application dated 2nd September 2024

Odula & another v Oricho (Environment and Land Case E021 of 2024) [2025] KEELC 5353 (KLR)

Environment and Land Court
17 July 2025
2,993 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Siaya court struck out a land claim brought without letters of administration but let an adverse possession claim proceed, preserving the families' current occupation of the land.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Siaya (A.E. Dena, J) disposed simultaneously of a preliminary objection dated 17/01/2024 and the plaintiffs' application dated 2nd September 2024 in a land dispute over parcel North Gem/Asayi/154. The plaintiffs, suing as beneficiaries of their late father Elkana Odula, sought a declaration of adverse possession over 0.4 Ha, an order for transfer or payment of Kshs 2,700,000 per a valuation report, and a temporary injunction or status quo against the defendant, who was sued as next of kin of the registered owner, the late Johana Oricho. On the preliminary objection, the court applied Mukisa Biscuits and held that only the locus standi ground was a pure point of law: lacking letters of administration or a grant ad litem, the plaintiffs had no capacity to sue over their father's estate, rendering the suit in that capacity incompetent. The grounds on res judicata (Siaya Succ Misc E079 of 2024), the defendant's own capacity, and the alleged defective jointly sworn verifying affidavit were not properly raised or were not fatal, defects being curable under Article 159(2). The court nonetheless found the suit sustainable on the plaintiffs' personal plea of adverse possession. Prayers 1, 2 and 3 of the application, being final in nature, were refused as premature; the court issued an order maintaining the status quo on the occupied portion pending full hearing. No costs order appears in the final orders.

Questions the Court framed

#

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

  1. 1.Whether the preliminary objection is properly raised as a pure point of law
  2. 2.If yes, whether it is merited to warrant striking out the plaintiffs' suit
  3. 3.Whether the orders sought in the application dated 2nd September 2024 should issue

Key legal issues

#
01

Whether the preliminary objection was properly raised as a pure point of law

Holding

Only the locus standi ground qualified; res judicata and facts-dependent grounds were not properly raised

Reasoning

Applying Mukisa Biscuits, the court held that a preliminary objection must rest on a point of law pleaded or arising by clear implication. The challenge to the defendant's status as administrator of Johana Oricho's estate and the res judicata plea required ascertainment of facts and comparison of proceedings, so they ceased to be pure points of law and could not be determined on a preliminary objection.

p. 4
02

Whether the plaintiffs had locus standi as beneficiaries of the estate of Elkana Odula

Holding

The plaintiffs lacked locus standi without a grant of letters of administration or grant ad litem

Reasoning

The plaint pleaded that the plaintiffs' deceased father settled on the land, showing they sued as beneficiaries. Under section 82(a) of the Law of Succession Act, only personal representatives may agitate causes vested in a deceased. Their suit in that capacity was therefore incompetent.

p. 3
03

Whether a jointly sworn verifying affidavit fatally defects the suit

Holding

No; a defective verifying affidavit is not fatal to the entire suit

Reasoning

The court found no legal provision outlawing jointly sworn affidavits and, relying on Muli v China Road Bridge and Benel Development Limited, held that defects in a verifying affidavit attract the court's discretion under Article 159(2), which exhorts courts to administer substantive justice without undue regard to technicalities.

p. 4
04

Whether interlocutory reliefs including declaration of adverse possession, transfer and valuation payment could issue

Holding

Prayers 1, 2 and 3 could not be granted at interlocutory stage; only status quo was appropriate

Reasoning

Those prayers would dispose of the suit at interlocutory stage, amounting to summary judgment in a matter requiring proof of adverse possession to the required standard at a full hearing. Since plaintiffs had allegedly lived on the portion for over 30 years and this was not refuted, the balance of convenience favoured preserving the situation on the ground.

p. 5

Legal principles established

#
  • To sue over a deceased's estate one must hold a grant of letters of administration or grant ad litem; lack of capacity to sue renders the suit incompetent
  • Res judicata cannot be sustained on a preliminary objection where its ascertainment requires comparison of proceedings and facts
  • A defective verifying affidavit is not necessarily fatal to a suit
  • Status quo orders preserve the subject matter pending determination

Court orders

#
  1. 1.The preliminary objection partly succeeds on the ground of the plaintiffs' lack of locus standi to file these proceedings as beneficiaries of the estate of Elkana Odula; the rest of the grounds fail as not properly raised
  2. 2.The case shall be determined on merit on the claim of adverse possession
  3. 3.The status quo on the portion of land North Gem/Asayi/154 measuring (0.4 Ha) occupied by the plaintiffs shall be maintained pending hearing and determination of the main suit

The bench

#

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

majority

Wrote the judgment

Jurisdiction invoked
Article 159(2) Constitution of Kenya; provisions of the Law of Succession Act and Civil Procedure Act cited

Relief refused

#

Declaration that plaintiffs are beneficial owners by adverse possession; transfer/execution of documents; payment of Kshs 2,700,000

These are final orders that cannot be granted at interlocutory stage and would amount to determining the suit to finality without a full hearing

p. 5

Temporary injunction against the defendant

The court proceeded on the basis of maintaining the status quo instead

p. 6

Costs

No costs order recorded in the judgment (plaintiffs' prayer that 'costs be in the course' not addressed in the final orders).

Quotable passages

#

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

The preliminary objection partly succeeds on the ground of the plaintiffs lack of locus standi to file these proceedings as beneficiaries of the estate of Elkana Odula. The rest of the grounds fail on the basis that they are not properly raised
p. 5Final orders - partial success of preliminary objection
The status quo on the portion of land North Gem/Asayi/154 measuring (0.4 Ha) occupied by the plaintiffs shall be maintained pending hearing and determination of the main suit.
p. 7Final orders - status quo
it is this court's finding that the Plaintiffs did not have the capacity to sue and the suit is thus incompetent
p. 3Locus standi under section 82(a) Law of Succession Act
A plea of res judicata can only be raised by way of a proper application where the ground can be argued and the relevant proceedings attached for comparison.
p. 4Res judicata not sustainable on preliminary objection

Issues in the judgment

#
minor

The deceased registered owner is referred to inconsistently as 'Johana Oricho' and 'Johana Aricho' in successive passages

minor

Preliminary objection dated 17/01/2024 but filed 4/2/2025, with submissions dated 17/01/2025; date inconsistencies within the record

minor

Neutral citation field: none appears on the face of the judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Odula & another v Oricho (Environment and Land Case E021 of 2024) [2025] KEELC 5353 (KLR)", Case Analysis (2025). Notice of Preliminary Objection dated 17/01/2024 and Application dated 2nd September 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5353/eng@2025-07-17

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