Abong'o (Suing as Legal & Personal Representative of the Estate of Jonathan Abongo Olenyo) v Mosi & 4 others (Environment and Land Case E019 of 2025) [2026] KEELC 3305 (KLR)

3. The second point is that the suit is fatally defective and incompetent, and statutorily barred for reason of ofiending Section 4 (1) of the Limitation of Actions Act. The Applicants maintained that the plaintifi/respondent seeks to challenge an adjudication and registration process over the suit properties, which process was completed in the year 1977. 4. The Applicants stated that the cause of action arose approximately 5 decades ago but the suit was filed in 2025, which is way over the twelve (12) years’ period prescribed by the law as the limitation period for recovery of land. 5. Lastly, the Applicants stated that the suit was waste of the process of court besides it being frivolous and aimed at vexing and harassing the defendant/Applicants. Submissions 6. The preliminary objection was canvassed by way of written submissions. The Applicants filed theirs dated 9th January 2026. In them they submitted the preliminary objection was raised pursuant to the doctrine established in Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696, which only permits the raising of preliminary objections on pure points of law. They reiterated the grounds of the preliminary objection as outlined on their application and described in the introductory art of this ruling. 7. On the first ground on jurisdiction, the Applicants submitted urged this court to down its tools in line with the finding of the court in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1. They submitted that the suit related to the implementation of a 1958 sketch map and the deregistration of the Respondents' father from parcel Nos. L.R. 1515 and 1517 as well as seeking the rectification of the register in his favour. 8. The Applicants submitted that the issues outlined above are inextricably linked to a land adjudication process which was concluded in 1977-1979 under the Land Adjudication Act (Cap 284) following which a ministerial appeal decision of 1993 in Case No. 1763/1986 was made and two final court judgments from courts of competent jurisdiction given. 9. On the basis of the above reasons, the applicant submitted that this court does not have the jurisdiction to hear and determine the suit before it. 10. Concerning the second ground on the suits being res judicata, the Applicants submitted that the suit ofiended Section 7 of the Civil Procedure Act for the reason that the suit related to other decisions in which the parties were the same or privy to the parties therein. They maintained that the plaintifi, William Owuor Abongo, sued in ELC No. 15 of 2019 at Oyugis and in Judicial Review No. 6 of 2016 at Kisumu. They added that respondents, as legal representatives of Joash Mosi Nuri, were the opposing (adverse) parties in both suits. 11. The above mentioned suits, the applicant submitted, related to the same subject matter. They stated that Oyugis ELC Case No. 15/2019 concerned ownership, trespass, and injunction over parcel Nos. 1515 and 1517. They maintained that judgment delivered on 5th November 2024 granted permanent injunctions to the Respondents and dismissed the Defendant's counterclaim. 12. Further they argued that in the Kisumu Judicial Review No. 6/2016, the plaintifi/respondent challenged the implementation of the Ministerial Appeal decision (1763/1986) regarding Parcel 1516. This suit, according to the Applicants was dismissed in December 2018 on account of an inordinate delay of 22 years and for lack of merit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3305/eng@2026-04-24 2

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13. The Applicants submitted that the courts that handled the above cited cases were courts of competent jurisdiction and the judgments rendered in those decisions were final and conclusive, and none ever been appealed from them. 14. The Applicants maintained that the plaintifi’s/ respondent’s attempt at reframing the dispute as one for implementation of a 1958 map is an efiort to evade the principle of res judicata. They relied on Uhuru Highway Development Ltd v Central Bank of Kenya [1996] eKLR and submitted, guided by the said authority, that a change in the form of the cause of action or the relief sought does not defeat the res judicata doctrine if the core issues were the same. 15. On the ground of statutory time limitation, the Applicants submitted that the suit was time barred on account of Section 4 (1) of the Limitation of Actions. They argued that the plaintifi/respondent was barred from seeking to enforce an action that accrued more than 12 years ago. They contended that, the plaintifi/respondent’s alleged failure to implement a sketch map which is the subject of the suit accrued in 1958. They added that the present suit was filed in 2025 and maintained that no saving provision pursuant to sections 22, 24 and 26 of the Limitations Of Actions Act had applied or had been pleaded. As such, they submitted that the suit was a nullity and should be struck out. 16. Lastly, the Applicants contended that the filing of the suit was an abuse of court process for reasons that the plaintifi/respondent was forum shopping in Homabay after losing in Oyugis and Kisumu courts, and added that the plaintifi/respondent is seeking to relitigate matters that had been settled in previous judgment. Equally, the Applicants maintained that the suit is vexatious oppressive and goes against the principle of finality of litigation. 17. The plaintifi/respondent filed his submissions dated 20th January 2026. On the issue of jurisdiction he submitted that he had on several occasions visited the Land Adjudication ofices in Nairobi concerning his claim and been advised to get a court order. He submitted that time did not start running in 1958 as alleged by the Applicants in the preliminary objection. 18. On the issue of the suit being res judicata, the plaintifi/respondent denied the existence of a suit between himself and the defendant/Applicants as alleged and maintained that no evidence had been provided to the court to prove the same. Issues, Analysis and Determination 19. The issues that arise for determination herein are: whether the preliminary objection has merit; and who should bear the costs of the objection. 20. The law governing preliminary objections was set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors. (1969) EA 696 wherein the court established the threshold that must be met in them for one to succeed. Accordingly, the court held in the decision 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.’’ https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3305/eng@2026-04-24 3

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21. In Odeny (Formerly, Victor Onyango Odeny) v Attorney General (Petition E415 of 2022) [2024] KEHC 5627 (KLR) (Constitutional and Human Rights) (23 May 2024) (Ruling) the court cited Oraro v Mbaja [2005] 1KLR and observed that: “ 19. Furthermore, the observation in the Oraro vs. Mbaja Court stated as follows: [2005] 1 KLR ofiers significant insight. The court stated as follows: 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. Examples are 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 demurrer. It raises a pure point of law, which is argued on the assumption that all facts pleaded by the opposite side are correct. It cannot be raised if any fact is to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion confuse issues and this improper practice should stop… The principle is abundantly clear. A “preliminary objection” correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point…Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence…….” 20. From the reading of the above authorities, the essential characteristics of a preliminary objection can be succinctly stated as follows: 22. i. It must be on a pure point of law, not factual matters. ii. It is argued on assumption that all facts pleaded by the party against whom that objection is targeted are correct. iii. If any fact has to be ascertained or if what is sought in the objection is an exercise of judicial discretion, it cannot be raised. iv. If successful, it must be capable of disposing the suit without the need of proceeding to full trial. Guided by the decisions above, this court finds that the grounds 2 and 3 of the Preliminary Objection are not preliminary objections properly so called because they raise factual issues. Such issues call on the court to analyze the merits or otherwise of facts. For instance, this court is being asked to find whether the suit is res judicata, as provided for under Section 7 of the Civil Procedure Act. To be clear, the preliminary point of law maintained by the Defendants/Applicants’ is that the Court does not have jurisdiction to hear and determined the suit on account of other cases that had been determined by courts of competent jurisdiction. They also stated that the suit is res judicata considering the aforementioned cases. I will not belabor the two points. They involve matters that relate to facts. These are disputed by the plaintifi/respondent. As such, they do not constitute pure points of law s the court is called upon to determine whether these alleged cases really existed as was expounded in Odenyo v Attorney General (supra). https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3305/eng@2026-04-24 4

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23. Thus, for it to arrive at such a finding the Court has to examine the pleadings filed in the previous suits, the parties thereto, the issue in them and the decisions rendered as against the instant suit. That is a long shot for the court regarding a concluding about the instant preliminary objection. It should not be lost to the parties and everybody else that this court has time and again held that whereas a party may have clear facts that would raise successfully the point of res judicata against the adverse one, it is incumbent on that party to raise the same by laying before the court the material to enable it to so conclude. How does he do so? Not by a preliminary point of law which then would be unsupported, and not by submissions since the latter do not constitute pleadings but by way on a formal application be which it would annex the evidence thereof. The only exception would be where the defence raises the point and the Plaintifi expressly admits to such a point through a reply to the defence. 24. The next ground being that the suit is a waste of the process of court and frivolous, and aimed at vexing and harassing the defendants/Applicants requires evidence to show frivolity and how the court process is being abused, for instance, by the Plaintifi filing a multiplicity of suits. Moreover, harassment is a factual issue that would require proof. 25. This court now turns to the only remaining ground about limitation of time. This is ground constitutes a pure point of law. I have carefully analyzed this ground of the preliminary objection, the submissions of the parties as well as the plaint filed by the plaintifi/respondent. From the plaintifi’s own pleadings, specifically paragraph 7 of the Plaint, is set out a time factor. He pleaded as hereunder: ‘The Plaintifi's claim against the Defendants is for orders directing the Director Land Adjudication Oficer, the 3rd Defendant herein, to implement the original sketch map drawn in 1958 as directed by the Court of Appeal, deregistration of the 1st and 2nd defendant’s father Joash Mosi Nduri as the proprietors of LR. C/Karachuonyo/Konyango/1515 & 1517 and rectification of the register to refiect the Plaintifi as the registered owner and costs of the suit.’ 26. The Defendants maintain that the Court does not have jurisdiction. The plaintifi/ respondent seeks the relief of implementing the original sketch Map drawn in 1958. A reading of paragraph 7 of the plaint suggests that the Court of Appeal ordered that the Map be implemented, and it was never done. Given that it in is pleaded that the Map was drawn in 1958 it goes without saying that implementation is sought after a period of 68 years. In his submissions, the Plaintifi argues that the cause of action did not arise in 1958. But he never pleaded when it arose. This Court is not to be left to speculation. Granted these circumstances, the plaintifi’s pleadings are clear as to when that Map was drawn. It is left to infer that the period started running from 1958. This court therefore finds that the cause of action arose in 1958 as pleaded. In any event the suit is against an adjudication process that ended way soon as the title over the suit land was created. 27. Accordingly, the Applicants’ preliminary objection is merited. It is upheld on the basis of the ground of suit being barred by limitation of time in terms of Section 4(1) of the Limitation of Actions Act. The suit is accordingly dismissed. 28. The plaintifi shall bear the costs of the preliminary objection, and the suit. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 24TH DAY OF APRIL 2026. HON. DR. IUR NYAGAKA JUDGE In the presence of, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3305/eng@2026-04-24 5

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Ms. Naswa Advocate for the 1st and 2nd Defendants No appearance for Owaka for the Plaintifi No appearance for the Attorney General for the 3rd Defendants https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3305/eng@2026-04-24 6

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