Odhiambo v Odhiambo & another (Enviromental and Land Originating Summons E051 of 2025) [2026] KEELC 1554 (KLR)

extinguished on the grounds that the plaintifi herein has openly, peacefully and continuously been in occupation and possession of the aforesaid parcel of land for a period exceeding 12 years. b. There be an order that the plaintifi be registered as the proprietor of the whole of parcel of LR No. Kanyada/k/kanyango/5252 measuring 0.06Ha in place of the Defendant who currently holds the title to the suit land. c. There be an order restraining the Defendants either by himself themselves, agents, servants and/or employees from interfering with the plaintifi’s peaceful possession and occupation of the said portion of land measuring 0.06Ha comprising of all the parcels of land known as LR No. Kanyada/k/kanyango/5252 in any manner whatsoever and/or howsoever. d. There be an order of eviction and a permanent injunction restraining the Defendants/ Respondents herein either by himself themselves, servants, agents and/or employees or anyone acting on their behalf from trespassing, evicting, occupying and/or disposing of the suit property. e. The Deputy Registrar and/or the Executive Oficer of the Honorable Court be directed and/ or ordered to execute the transfer instruments and all attendant documents, to facilitate the transfer and registration of the parcel of land measuring 0.06 Ha comprising parcel of land known as LR No. Kanyada/k/kanyango/5252 in favor of the plaintifi, in the event of default by the Defendant to execute the necessary transfer instruments. f. Costs of this originating summons be borne by the defendant. The Preliminary Objection 3. The Defendant/Applicant filed a Notice of Preliminary Objection dated 30th September 2025. The Preliminary Objection was based on the following grounds: a. That the claim is res judicata contrary to the provisions of section 7 of the Civil Procedure Act and by virtue of Migori ELC No. 43 of 2017 over the same subject matter. b. That no claim for adverse possession shall be filed before the lapse of 12 years as required under section 37 of the Limitations of Actions Act. c. That no claim for adverse possession shall be entertained in court without a ground report prepared by a registered surveyor being an expert in land d. That the claim is therefore incompetent before this court. e. That the claim before this court is therefore bad in law, an abuse of court process and ought to be struck with costs. Parties’ submissions 4. The application was canvassed by way of written submissions. The defendant/applicant filed his submissions dated 14th October 2023. He relied on Mukhisa Biscuits Manufacturing Limited v Westend Distributors (1969) EA 969 to submit that a Preliminary Objection should be on a point of law that is pleaded or that is manifest from the reading of pleadings. the defendant /respondent argued that section 7 of the limitation of actions act only allows the institution of claims founded on adverse possession if the plaintifi has occupied and utilized the property in question for period of 12 years of more. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1554/eng@2026-02-19 2

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5. He argued that the title to the suit property was acquired on 12th April 2018, which fact is not disputed by the plaintifi. He annexed the title of the suit property indicating that it was issued on that date. 6. Further the above, the defendant relied on Migori ELC Case no. 34 of 2017 to argue that the that the plaintifi’s suit was res judicata since it had been concluded, in the aforesaid suit. He submitted that the plaintifi had neither appealed nor applied to be joined as party in the said proceedings. He argued that the litigation must come to an end. 7. The plaintifi filed her submissions dated 23rd October 2025. She submitted that contrary to the applicant’s averment that the suit was res judicata by virtue of Section 7 of the Civil Procedure Act, the said suit could not be said to be res judicata as she was not party to the proceedings in the said Migori ELC Case No. 34 of 2015. 8. On whether the claim of adverse possession was premature, the plaintifi relied on Section 37 of the Limitation of Actions Act to argue that a claim of adverse possession could arise even when the title was not in the name of the defendant who later becomes the registered owner. 9. As to whether the Preliminary Objection raised points of law, the plaintifi argued that some of the issues raised by the defendant needed to be proved by evidence, including the time when she occupied the suit property. She equally argued that the issue of the expert survey was premature as parties has not yet taken directions on the main suit, and that they were yet to comply with Order 11 of the Civil Procedure Rules, 2010. 10. Finally, on the issue of whether the suit was an abuse of the court process, the plaintifi contended that her suit raised serious matters of law. She relied on the case of DT Dobie (Kenya) Limited v Muchina [1980] KLR 1 to argue that matter should not be summarily dismissed, unless it was so hopeless that it did not disclose any cause of action as to be irredeemable even by amendment of pleadings. Issues, analysis and determination 11. The main issue for determination herein is whether the defendant Preliminary Objection is merited. Equally important is the question of who to bear the costs thereof or of the suit if the Objection succeeds. 12. I have carefully considered the Preliminary Objection, the pleadings filed by the plaintifi/respondent, as well as the submissions of the parties. The law on Preliminary Objections was clearly elucidated in Mukhisa Biscuits Manufacturing Limited v Westend Distributors (1969) EA 969. It set out the threshold that must be met by a party pleading a Preliminary Objection. Accordingly, the court held that: ‘‘A Preliminary Objection consists of appoint of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as preliminary point may dispose of the suit. example is an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. a Preliminary Objection is in the nature of that used to be called a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.’’ 13. As to whether the Preliminary Objection meets the test set out in Mukhisa Biscuits (supra), the court notes that although the defendant raises some questions of law such as res judicata, the same cannot apply in this case. The reason is that for res judicata to be found to apply the court has to examine https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1554/eng@2026-02-19 3

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the pleadings, the evidence in that previous suit and whether it was determined on merits. Also, it has to satisfy itself as to the subject in that previous suit and the capacities or titles the parties litigated under, as all these above ingredients are compared along similar ones in the instant suit. Whereas the defendant contends that this court examines the judgment in the Migori ELC No. 34 of 2017 to find the matter res judicata, it notes that this would call for it to examine evidence of the parties, as availed in the previous suit, on the various legal requirements so as to form an informed opinion. That would place the matter outside the ingredients of a preliminary objection. 14. On the issue of the plaintifi’s suit being premature, the court notes that that issue cannot be determined at this stage as there is need to call evidence to determine when the alleged occupation and use of the suit property begun or even ended. The beginning of the period is not admitted to by the Defendants. 15. The other point raised by the Defendants was the issue of the lack of the ground report by the surveyor. As to whether it existed or not or has been carried out or not, it is a question of fact, which can only be proved by the parties tending evidence thereon. Thus, this court finds that same was not a preliminary point of law, and in any event, it was raised prematurely. 16. As to whether the plaintifi’s suit was an abuse of the court’s process, on has to demonstrate by way of evidence the Plaintifi has abused the process, for instance, by filing a multiplicity of suits. That cannot be a pure point of law hence that ground fails. I am persuaded by the decision of JKW V IKE (Civil Appeal e056 of 2023) [2024) KEHC 11647 (KLR) (Family) (12 July 2024) (Ruling) wherein the court held that: ‘‘I find that the filing the current suit by the Petitioner is an abuse of court process and in so doing I associate myself with the decision in Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR where the court observed: The situation that may give rise to an abuse of court process are indeed in exhaustive, it involves situations where the process of court has not been or resorted to fairly, properly, honestly to the detriment of the other party. However, abuse of court process in addition to the above arises in the following situations: a. Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action. b. Instituting difierent actions between the same parties simultaneously in difierent court even though on difierent grounds. c. Where two similar processes are used in respect of the exercise of the same right for example a cross appeal and respondent notice. d. Where an application for adjournment is sought by a party to an action to bring another application to court for leave to raise issue of fact already decided by court below e. Where there no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action. f. Where a party has adopted the system of forum-shopping in the enforcement of a conceived right. g. Where an appellant file an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1554/eng@2026-02-19 4

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h. Where two actions are commenced, the second asking for a relief which may have been obtained in the first. An abuse may also involve some bias, malice or desire to misuse or pervert the course of justice or judicial process to the irritation or annoyance of an opponent.’’ 17. I am not convinced that the plaintifi’s suit fits in the above set of circumstances. That limb of the Objection has therefore to fail. 18. The upshot of the foregoing is that the respondent’s Preliminary Objection is not merited. It is hereby dismissed. 19. Regarding costs, Section 27 of the Civil Procedure Act provides that they follow the event, and the judge has the discretion to award them. But if he decides otherwise, then he has to give reasons for the same. In the instant case, I find that no other basis to think otherwise than to award them accordingly. Thus, they are payable to the Defendant. 20. On issue remains now unattended. The Defendant had filed a Notice of Motion dated 25th August 2025 and the parties had responded and even submitted on it. To that extent then the ruling on the Notice of Motion shall be on 8th May 2025. Ruling Notice to issue by the Defendants. 21. Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 19TH DAY OF FEBRUARY 2026. HON. DR. IUR NYAGAKA JUDGE In the presence of, Court Assistant: Ms. Fiona Mr. Kirianki for Nyambati for the Defendant Mr. Omuthe for the Plaintifi (absent) https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1554/eng@2026-02-19 5

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