1.This ruling is on the preliminary objection dated 17th May, 2021. The preliminary objection is broken down into seven parts.In summary, it is to the effect that the Plaintiffs’ suit is bad in law and ought to be struck out because it is based on a claim of adverse possession of the Defendant’s suit land namely Kajiado/loodariak/244 yet on 20th August, 2015, when Defendant purchased the suit land, they were not in possession.A period of 12 years has not elapsed since then and the suit is thus bad in law.The fifth Plaintiff has sworn a replying affidavit dated 4th March, 2022 opposing the preliminary objection deposing, inter alia, that the Plaintiffs were born on the suit land.Only the Plaintiffs’ counsel filed written submissions on 8/3/2022 urging, inter alia, that a preliminary point of law cannot be anchored on evidence but on pure points of law as per the celebrated case of Mukisa Bisbuit Manufacturing Company, Limited –versus- West End Distributors Limited (1969) E.A. 968.In the above case, Newbold JA had this to say at page 701;
2.I have carefully considered the Preliminary Objection in its entirety including the submissions and the other material by both sides.I find that the Preliminary Objection has no merit because the issue of when the occupation of the suit land by the Plaintiff begun is one of the issues to be decided after hearing the evidence. Before this evidence has been adduced and subjected to cross-examination and before the evidence in rebuttal is also given on oath and subjected to cross examination, it is not possible decide when the occupation began.Given the above scenario, it is obvious that the Preliminary Objection is not on a pure point of law. I find it has no merit. I dismiss it.Costs in the cause.