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ELCDismissedNot stated in judgment (Maseno; plaint dated 14th August 2024)

Onywere v Alendi (Environment and Land Case E030 of 2024) [2025] KEELC 6904 (KLR)

Environment and Land Court
9 October 2025
1,088 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed an attempt to strike out a land trespass suit, confirming trespass claims don't require prior boundary resolution by the Land Registrar.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisumu (E. Asati, J) determines a Notice of Preliminary Objection dated 18th December 2024 filed by the Defendant, seeking to strike out the Plaintiff's trespass suit on the ground that the dispute concerns a common boundary between the Plaintiff's plot and a parcel belonging to the Defendant's father-in-law, and is therefore reserved to the Land Registrar under sections 18(2) and 19(1), (2) and (3) of the Land Registration Act, 2012, ousting the court's jurisdiction. The Defendant relied on Owner of the Motor Vessel 'Lilian S' v Caltex Oil. The Plaintiff, through a replying affidavit and submissions citing Oraro v Mbaja and Avtar Singh Bharma, contended that the suit pleads trespass, negligence and special damages, and that the boundary had already been established with a beacon certificate showing encroachment. Applying the Mukisa Biscuit threshold, the court held that the plaint is founded solely on the tort of trespass, refers only to one parcel, and does not raise a boundary dispute; the neighbouring parcel was introduced only in the defence, its owner is not a party, and establishing the alleged boundary relationship would require evidence. The objection was therefore not a pure point of law. The Preliminary Objection was dismissed with each party bearing its own costs, and the suit proceeds to hearing.

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 meets the threshold of a point of law under the Mukisa Biscuit test
  2. 2.Whether sections 18 and 19 of the Land Registration Act oust the court's jurisdiction over the plaintiff's trespass suit in favour of the Land Registrar

Key legal issues

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01

Whether the suit offend sections 18(2) and 19 of the Land Registration Act on boundary disputes

Holding

The Preliminary Objection fails because the plaint is founded on trespass and does not raise any boundary dispute; establishing the alleged boundary issue would require evidence

Reasoning

The court read the plaint and found it refers only to the suit plot and pleads trespass - entry and erection of structures without consent. The neighbouring parcel was introduced only in the defence, belongs to the defendant's father-in-law who is not a party, and no boundary dispute is indicated on the pleadings. Determining the alleged boundary relationship would require evidence, disqualifying the objection as a pure point of law.

p. 3
02

Whether the objection meets the Mukisa Biscuit threshold for a preliminary objection

Holding

Though framed as a point of law on jurisdiction, the objection depends on facts to be ascertained and therefore is not sustainable

Reasoning

Applying Mukisa Biscuit, the court noted a preliminary objection is argued on the assumption that all pleaded facts are correct and cannot be raised if facts must be ascertained. Since the existence of a boundary dispute between the two parcels would require evidence, the objection fell outside the threshold and lacked merit.

p. 3

Legal principles established

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  • A preliminary objection cannot be raised if any fact has to be ascertained or where the exercise of judicial discretion is sought
  • A boundary-determination objection requires the court to examine whether a boundary dispute genuinely arises on the pleadings before jurisdiction is ousted

Court orders

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  1. 1.The Preliminary Objection dated 18th December 2024 is dismissed
  2. 2.Each party to bear own costs of the Preliminary Objection

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Environment and Land Court jurisdiction over trespass claims; objection based on sections 18(2) and 19(1), (2) and (3) of the Land Registration Act, 2012

Relief refused

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Defendant's prayer to strike out the suit with costs

The objection did not raise a pure point of law; it required evidence to establish the alleged boundary dispute

p. 3

Costs

Each party to bear own costs of the Preliminary Objection.

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 a preliminary objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
p. 2threshold for preliminary objections
The court finds that the Preliminary Objection lacks merit and hereby dismisses it. Each party to bear own costs of the Preliminary Objection.
p. 3disposition
The plaint does not relate to a dispute on the position of the common boundary between the suit land and any land.
p. 3suit founded on trespass, not boundary dispute

Issues in the judgment

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minor

Parcel number inconsistently stated as 9341/52 and 934/52 within the judgment

minor

Suit plot referred to as plot No.143 in submissions but plot number 148 in the plaint as recorded by the court

minor

Paragraph numbered 21 appears twice

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, "Onywere v Alendi (Environment and Land Case E030 of 2024) [2025] KEELC 6904 (KLR)", Case Analysis (2025). Not stated in judgment (Maseno; plaint dated 14th August 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6904/eng@2025-10-09

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