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ELCDismissedELCLC E018 OF 2026

Japhet Choga Charero and Samuel Charero (suing as administrators of the estate of Charero Choga Mwadzuwa, deceased) v Julie Kisaka and the Land Registrar Kilifi County

Environment and Land Court of Kenya at Malindi
29 September 2026
4,752 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court at Malindi struck out a family's challenge to a Kilifi land title because they had already benefited from the same subdivision in succession proceedings.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi determined two applications and a preliminary objection arising from the Plaintiffs' suit, brought as administrators of the estate of Charero Choga Mwadzuwa, challenging the registration of Title No. KILIFI/MTWAPA/7222 in the 1st Defendant's name and seeking cancellation of the title, restoration to the estate, and interim injunctive relief. The 1st Defendant filed a preliminary objection on grounds of res judicata (Section 7, Civil Procedure Act, invoking Mombasa HCCC No. 107 of 2011) and limitation (Section 7, Limitation of Actions Act), plus a notice of motion to discharge the interim orders and strike out the suit. The court dismissed the preliminary objection: res judicata could not be established as a pure point of law because the present Plaint challenges post-death subdivision and registration, raising evidentiary questions; and on limitation, although fraud postpones the running of time under Section 26, the Plaintiffs' 2021 succession proceedings over two of three subdivided portions demonstrated knowledge of the subdivision, so the 2026 suit was not statute-barred. However, the court struck out the suit under Order 2 rule 15 as scandalous, vexatious and an abuse of process, holding that the Plaintiffs could not rely on the subdivision for succession while impeaching the third resultant portion - the doctrine of approbation and reprobation - and noting the unrebutted 16-year occupation by the 1st Defendant. The interim orders of 5th February 2026 were discharged, the Plaintiffs' injunction application was dismissed, and costs were awarded to the 1st Defendant on both the motion and the injunction application, with no orders as to costs on the preliminary objection. The file was marked closed.

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 is merited
  2. 2.Whether the suit should be struck out
  3. 3.If the suit survives the foregoing objections, whether the Plaintiffs have satisfied the threshold for the grant of temporary injunctive orders

Key legal issues

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01

Whether res judicata under Section 7 of the Civil Procedure Act barred the suit

Holding

The objection failed as a pure point of law because the constituent elements of res judicata could not be established without evidence

Reasoning

The earlier Mombasa suit concerned the mother title and a third party's claim; the present Plaint challenges post-death subdivision and registration of Title 7222. Whether the subsequent dealings were valid, and whether the Plaintiffs claim under the same title as earlier parties, are evidentiary questions unsuitable for a preliminary objection.

p. 8
02

Whether the suit was time-barred under Section 7 of the Limitation of Actions Act

Holding

The limitation objection failed as a pure point of law; time began running at latest in 2021 when the Plaintiffs conducted succession proceedings showing knowledge of the subdivision, so the 2026 suit was within time

Reasoning

Although Section 26 postpones limitation where fraud is pleaded, the Plaintiffs' own conduct - succession proceedings in 2021 over two of three subdivided portions - demonstrated actual knowledge or constructive discovery of the subdivision. The suit filed in 2026, about five years later, was not statute-barred on the pleadings.

p. 12
03

Whether the suit should be struck out under Order 2 rule 15 as scandalous, vexatious and an abuse of process

Holding

The suit was struck out because the Plaintiffs' conduct amounted to approbation and reprobation - relying on the subdivision for succession while challenging the third resultant portion as fraudulent

Reasoning

The Plaintiffs participated in succession over two subdivided portions in 2021 while omitting the portion now challenged, and did not rebut the 1st Defendant's 16-year occupation. Permitting the suit would allow them to accept a benefit of the subdivision while impeaching it, rendering the claim vexatious and abusive.

p. 16

Legal principles established

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  • A preliminary objection is confined to points of law and cannot rest on contested facts requiring evidence
  • When fraud is pleaded in a land recovery action, limitation under Section 26 runs from discovery of the fraud or when it could with reasonable diligence have been discovered
  • A party cannot approbate and reprobate - accept a benefit from a transaction while impeaching another consequence of the same transaction
  • A suit should only be summarily dismissed where it is plainly hopeless and incurable by amendment

Court orders

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  1. 1.The Preliminary Objection dated 24th March 2026 is dismissed with no orders as to costs
  2. 2.The 1st Defendant's Notice of Motion dated 24th March 2026 is allowed in terms of prayers 2, 3 and 4, with costs awarded to the 1st Defendant (discharge of the orders of 5th February 2026; striking out of the Plaintiffs' suit; costs in the cause)
  3. 3.The Plaintiffs' application dated 5th February 2026 for temporary injunctive relief stands dismissed with costs awarded to the 1st Defendant
  4. 4.The file is marked as closed

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 over land disputes concerning Title No. KILIFI/MTWAPA/7222

Relief refused

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Plaintiffs' application for temporary injunction restraining alienation of Title No. Kilifi/Mtwapa/7222

The suit was struck out as scandalous, vexatious and an abuse of process, so the interim orders could not survive

p. 17

Plaintiffs' substantive claim for cancellation of title and restoration of the property to the estate

Suit struck out under Order 2 rule 15 as an abuse of process given the Plaintiffs' conduct in the succession proceedings

p. 17

Costs

Preliminary Objection dismissed with no orders as to costs; 1st Defendant's Notice of Motion allowed with costs awarded to the 1st Defendant; Plaintiffs' injunction application dismissed with costs awarded to the 1st Defendant.

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 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.
p. 5Definition of preliminary objection
I therefore find that the 1st Defendant has not established the constituent elements of res judicata as a pure question of law. The first limb of the Preliminary Objection therefore fails.
p. 8Res judicata objection fails
when a party pleads fraud, time starts running from the time the fraud is discovered.
p. 10Section 26 Limitation of Actions Act - fraud and discovery
A party cannot derive a benefit from a particular transaction or state of affairs and, in the same breath, seek to impeach another consequence of that same transaction or state of affairs when it becomes inconvenient to the party's present position.
p. 14Approbation and reprobation
I therefore find that the suit, in the circumstances disclosed by the record, is scandalous and vexatious and amounts to an abuse of the process of the Court within the meaning of Order 2 rule 15(1) of the Civil Procedure Rules.
p. 16Striking out - abuse of process
1. The Preliminary Objection dated 24th March 2026 is hereby dismissed with no orders as to costs; 2. The 1st Defendant’s Notice of Motion dated 24th March 2026 is merited and is hereby allowed in terms of prayers 2, 3 and 4, with costs awarded to the 1st Defendant; 3. The Plaintiffs' application dated 5th February 2026 for temporary injunctive relief consequently stands dismissed with costs awarded to the 1st Defendant; 4. The file is hereby marked as closed.
p. 17Final orders

Issues in the judgment

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minor

Paragraph numbering restarts mid-judgment and jumps from 40 to 51

minor

Mother title cited as KILIFI/MTWAPA/716 in one place, described as measuring 4.9 hectares which equals the remaining portion, not the whole mother title

minor

Preliminary objection pleads cause of action arose in 2011 and suit barred after 14 years, but Section 7 prescribes 12 years

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, "Japhet Choga Charero and Samuel Charero (suing as administrators of the estate of Charero Choga Mwadzuwa, deceased) v Julie Kisaka and the Land Registrar Kilifi County", Case Analysis (2026). ELCLC E018 OF 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5960/eng@2026-09-29

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