Collins (Joined as legal representatives of the Estate of Wilson Omoke Edambo-Deceased) & 2 others v Choge & 5 others (Environment and Land Case 122 of 2021) [2026] KEELC 3804 (KLR)
The bottom line
#A Kenyan land dispute will go to full trial because the court refused to strike it out on a technical objection.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaintiffs have locus standi/capacity to sue the 1st to 4th defendants
- 2.Whether this Court has jurisdiction to hear and determine the suit
- 3.Whether the suit offends Sections 29 and 30 of the Land Adjudication Act (Cap 284) and the doctrine of exhaustion of remedies
- 4.Whether the preliminary objection dated 21st October 2025 is sustainable as a pure point of law
Key legal issues
#Whether the preliminary objection was a pure point of law
No - each ground requires investigation of contested facts, particularly allegations of fraud, so the objection fails
Applying Mukisa Biscuits and Oraro, the court found that the grounds on locus standi, jurisdiction and exhaustion were tied to facts requiring ascertainment. Contested fraud pleaded by both sides could only be tested at a formal hearing, so the objection could not dispose of the suit at the preliminary stage.
Locus standi of the plaintiffs as legal representatives and beneficiaries of the estate
On the submissions, the plaintiffs being legal representatives and beneficiaries of the estate have locus standi; the point was not established as a bar on the objection
Counsel for the plaintiffs relied on Waweru vs Republic to submit that legal representatives and beneficiaries of a deceased's estate are clothed with capacity. The court noted the authorities on administration (Otieno, Chudasama) but did not find the ground sustainable as a pure point of law, given the contested factual matrix.
Whether the suit offends sections 29 and 30 of the Land Adjudication Act and the exhaustion doctrine
The ground was not sustainable at the preliminary stage; the statutory bar could not be determined without factual inquiry and the objection otherwise failed
The court set out sections 29 and 30 and the exhaustion principle from Lopore Ole Maito, Speaker of National Assembly, Murage and Muthinja Kabiru, but found that the emerging contested fraud issues required a formal hearing, precluding summary disposal on exhaustion grounds.
Participation of intended interested parties
The court took notice of the intended interested parties' notice of appointment in the spirit of access to justice and fair trial rights under Articles 25(c), 48 and 50(1)
Counsel for the intended interested parties (Lydia Mugwanga Singa and another) drew the court's attention to their notice of appointment dated 25th May 2026. The court held it could not shut its eyes to those parties at that stage, citing Kanyiita Nderitu.
Legal principles established
#- A preliminary objection must be a pure point of law, argued on the assumption that all facts pleaded by the other side are correct
- Where there exists a clear statutory procedure for redress, that procedure should be strictly followed; courts are a forum of last resort
- A question of jurisdiction once raised must be decided forthwith
Court orders
#- 1.The preliminary objection dated 21st October 2025 by the 1st to 4th defendants is disallowed
- 2.Costs of the preliminary objection in the cause
- 3.The suit to proceed to full hearing (contested fraud issues to be tested at a formal hearing)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution (Environment and Land Court jurisdiction over disputes touching on land, title and land records) - as invoked by the plaintiffs per Malcolm Bell case; preliminary objection on jurisdiction determined under the court's inherent jurisdiction
Relief refused
#Striking out of the suit / dismissal of the plaintiffs' claim on the preliminary objection
The preliminary objection was not a pure point of law and contested fraud issues required a full hearing
Costs
Costs in the cause - 'the same is hereby disallowed with costs in the cause'
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.
A fortiori, the preliminary objection dated 21st October 2026 by the 1st to 4th defendants, is not sustainable and the same is hereby disallowed with costs in the cause.
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.
It is so ordered.
……Lack of jurisdiction thus renders a court's decision void as opposed to it being merely voidable…….
Issues in the judgment
#Internal date inconsistencies: preliminary objection dated 21st October 2025 in paragraph 1 but referred to as 'dated 21st October 2026' in the disposition; submissions dated 7th January 2026 yet directions given 27th October 2025 and plaintiffs' submissions dated 22nd May 2026, while judgment is dated 16th June 2026
Defence refers to 'Eldoret ELCC NO. 34 of 2018' while the plaint refers to 'Eldoret ELC Case No. 34 of 2016' concerning the same prior suit
Interested parties' counsel named variously as 'Flora Malanda' (para 8, appearing for plaintiffs), 'Ms Lausi Mwalaa' (para 28) and 'M/s Lauzi Mwalaa' (appearance list)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Collins (Joined as legal representatives of the Estate of Wilson Omoke Edambo-Deceased) & 2 others v Choge & 5 others (Environment and Land Case 122 of 2021) [2026] KEELC 3804 (KLR)", Case Analysis (2026). ELC Case (Fast Track), Kapsabet (amended plaint dated 21st March 2024 - number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3804/eng@2026-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.