Macheo Limited v Wycliffe Mulunda Khaoya, Benson Wanambisi Khaoya & Douglas Shikuku Khaoya (Sued as the Administrators of the Estate of Joseph Wafula Khaoya (Deceased)) & The Land Registrar, Trans Nzoia (Interested Party)
The bottom line
#Kenya's Environment and Land Court stopped a deceased seller's family from occupying land a buyer claims, ruling that defences like res judicata need evidence, not shortcuts.
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 preliminary objection raises pure points of law
- 2.Whether the suit is res judicata given Kitale Land Case No. 39 of 1999 and Kitale High Court Civil Case No. 141 of 2007
- 3.Whether the suit is statute-barred under the Limitation of Actions Act
- 4.Whether the court has jurisdiction over disputes concerning contracts relating to land
- 5.Whether the applicant has met the Giella conditions for a temporary injunction
Key legal issues
#Whether the preliminary objection was competent as a pure point of law
The objection was dismissed because res judicata, limitation and specific performance issues require probing facts and evidence
The court applied Mukisa Biscuits and Aviation & Allied Workers Union, holding that a preliminary objection assumes all facts pleaded by the opposite side are correct. Here, determining whether prior suits were heard and finally determined, whether the claim is time-barred, and whether specific performance is available all require examination of pleadings, rulings and documentary evidence, so the objection was not a pure point of law.
Whether the ELC has jurisdiction over disputed land sale contracts
Yes; the court has jurisdiction to determine disputes over contracts, choses in action and instruments granting enforceable interests in land
Jurisdiction derives from Article 162(2) and (3) of the Constitution and Section 13 of the Environment and Land Court Act, which confer exclusive original jurisdiction over matters relating to land, including contracts and instruments granting enforceable interests in land. Enforceability of the contract and the orders to issue are matters for trial after hearing and examining the evidence.
Whether a temporary injunction should issue
A temporary injunction as prayed was granted for one year, the applicant having established a prima facie case
Applying Giella v Cassman Brown and Mrao Ltd, the court found from the sale agreement and the plaint that the applicant showed a genuine and arguable case with an existing right arguably infringed. Continued trespass and destruction of developments made loss irreparable, and the balance of convenience favoured preservation. No mini-trial was required.
Legal principles established
#- A preliminary objection that requires ascertainment or evaluation of disputed facts is not a pure point of law
- The ELC has jurisdiction to hear and determine disputes over contracts relating to land, including enforceability of such contracts
- A court granting an interlocutory injunction is not expected to conduct a mini-trial
Court orders
#- 1.Preliminary objection dismissed as not a pure point of law
- 2.Temporary injunction as prayed granted, restraining the respondents from entering upon, ploughing, cultivating, clearing bushes, fencing, grazing livestock, wasting, damaging, selling, alienating or interfering with the applicant's possession of LR No. 10288 Saboti Southwest of Kitale Municipality, to last one year pending hearing and determination of the suit
- 3.Costs of the application to abide the outcome of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) and (3) of the Constitution and Section 13 of the Environment and Land Court Act
Relief refused
#Costs of the application
Costs were not awarded immediately; they were deferred to the outcome of the suit
Costs
The costs of this application shall abide the outcome of the suit
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.
Resultantly, the preliminary objection is dismissed as the same is not a pure point of law.
It follows, therefore, that this court has the requisite jurisdiction to hear and determine matters over disputed contracts.
I feel I have said enough to demonstrate why I am persuaded to allow the application, which I hereby do. A temporary injunction as prayed is thus granted to last one year to allow for the hearing and determination of the suit.
The costs of this application shall abide the outcome of the suit
Issues in the judgment
#Mukisa Biscuits cited with conflicting years: (1969) EA 696 in submissions but [1965] EA 696 in the court's own statement
Case number given as E051 OF 2026 with judgment dated 18 September 2026, an apparently future-dated filing year
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Macheo Limited v Wycliffe Mulunda Khaoya, Benson Wanambisi Khaoya & Douglas Shikuku Khaoya (Sued as the Administrators of the Estate of Joseph Wafula Khaoya (Deceased)) & The Land Registrar, Trans Nzoia (Interested Party)", Case Analysis (2026). ELC Case No. E051 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5521/eng@2026-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.