This ruling is in respect of the Preliminary Objection raised by the 1st defendant vide the Notice of Preliminary Objection dated 30/6/2025 on the following grounds that:
a) The court lacks jurisdiction to hear and determine the present suit pursuant to article 67(2) of the Constitution of Kenya and section 15 of the National Land Commission Act.
b) The suit is res judicata and is therefore barred under section 7 of the Civil Procedure Act Cap 21 Laws of Kenya, the subject matter and issues having been directly and substantially determined in Kisumu ELC No. 146 of 2012 and Kisumu ELC JR E001 of 2023 by a court of competent jurisdiction.
c) The plaintiffs’ suit is procedurally incompetent and amounts to an abuse of the court process, as it seeks to challenge land title and restrain dealings in land parcels whose validity was addressed in Kisumu ELC JR E001 of 2023.
d) The plaintiffs lack the requisite locus standi to challenge or restrain dealings in registered land parcels whose titles have not been canceled by a court of law contrary to the express provisions of section 26 of the Land Registration Act, 2012 and the judgment in Kisumu JR E001 of 2023.
The preliminary Objection was heard by way of written submissions.
It was submitted on behalf of the 1st defendant that the substance of the plaintiffs’ complaint falls within the scope of historical land injustices which is governed by article 67 (2) (b) of the Constitution and Section 15 of the National Land Commission Act.
Relying on the case of Patrick Musimba vs NLC and 4 others (2016) eKLR Counsel submitted that the court cannot usurp the statutory and Constitutional mandate of the National Land Commission. That the plaintiffs have not demonstrated that they invoked the Commission’s process or exhausted available remedies.
On behalf of the plaintiffs it was submitted that Article 162 (2) (b) of the Constitution specifically creates a special court to deal with matters Environment and Land.
That under section 2 of the Environment Land Court Act ‘’court’’ is defined to mean the Environment and Land Court which under section 13 of the Act has both original and appellant jurisdiction and determines all disputes in accordance with article 162 (2) (b) of the Constitution.
That the Environment and Land Court having found that the titles were fraudulently obtained, the matter is within its mandate in its original jurisdiction.
I have considered the submissions herein on the issue of whether or not the court has jurisdiction to determine a case based on historical land injustices and in light of the pleadings in the plaint, I find that the cause of action in this case is based on trespass and previous court pronouncements hence not specifically within the scope of historical land injustices. I find that being a claim to the title and ownership of land, this court has jurisdiction under the provisions of Article162 (2) (b) of the Constitution and section 13 of the Act.
On the plea of res judicata, Counsel relied on the provisions of section 7 of the Civil Procedure Act and submitted that the subject matter and issues of the case were directly and substantially determined in Kisumu ELC JR E001 of 2023 by a court of competent jurisdiction.
This court has not had the advantage of accessing the pleadings, evidence and decisions in the previous litigation and specifically, Kisumu JR E001 OF 2023 so as to know what the subject matter, issues and decision thereof were. It was the duty of the 1st defendant to avail this. The court is therefore unable to decide that the present suit is res judicata in the absence of these documents.
In paragraph 21 of the plaint it is pleaded that the cause of action arose on 21/3/2025 when the defendants are alleged to have illegally encroached onto the suit property. This could not have been the subject of JR E001 of 2023 which was filed in the year 2023. The objection based on the plea of res judicata therefore fails as does the objection on the court’s jurisdiction based on the grounds that the suit is re judicata.
The next objection is that the plaintiffs lack locus standi to bring the action. Counsel for the plaintiff relied on the case of Mumo Matemo and the provisions of Articles 22 and 60 of the Constitution to submit that the plaintiffs have locus standi to bring the action.
On behalf of the 1st defendant it was submitted that since the land is registered in the names of other people and there are no court orders canceling the titles the suit amounts to an impermissible challenge to indefeasible title hence the plaintiffs have no locus standi.
My view is that the matters raised in the preliminary objection require evidence in order to be determined as the case of Mukisa Biscuit Manufacturing Co. Ltd – vs- West End Distributors Ltd [1969] E.A 696,
“…a Preliminary Objection consists a point of law which has been pleaded, or which order by clear implication out of pleadings and which if argued as a Preliminary point may disposed of the suit.
Examples are on objection to the jurisdiction of the court or plea of limitation or a submission that the parties are bound by contact giving rise to the suit to refer the dispute to arbitration.’’
And that
“A Preliminary Objection is in the nature of what used to be 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.’’
I find that the Preliminary Objections lacks merit and hereby dismiss it.
Costs to the plaintiffs.
Orders accordingly.
Ruling dated and signed at Kisumu and delivered virtually this 29th day of January 2026.
E. ASATI,
JUDGE.
In the presence of:
Maureen - Court Assistant
Nyakiangana - for the Plaintiff
Karanja h/b for Njenga - for the 1st Defendant.
| ELCLC CASE NO. E024/2025 RULING Page 2 |