Kingati & another v Thiri (Sued as the Legal Representative of the Estate of M’thiri Njeru alias Mbute Kiriti) (Environment and Land Case E009 of 2025) [2026] KEELC 4843 (KLR) (23 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELC CASE NO. E009 OF 2025** **FRANKLINE MATI KINGATI…………………………………….1ST PLAINTIFF** **NJIRU NGARI MBOGO…………………………….………….2ND PLAINTIFF** **VS** **ALBERT KABUNGE THIRI (Sued as the legal representative** **of the estate of M’THIRI NJERU alias MBUTE KIRITI)……..…DEFENDANT** **RULING** 1. Vide a Preliminary Objection dated 20/01/2026, the Defendant raised an objection on the suit on the following grounds: 2. That the Plaintiff's claim for adverse possession is incurably defective and incompetent for having been instituted by way of a plaint contrary to the mandatory provisions of Section 38 of the Limitation of Actions Act, Cap 22 Laws of Kenya and Order 37 Rule 7 of the Civil Procedure Rules, which require that such a claim be commenced by way of Originating Summons. 3. That the suit offends the clear provisions of section 7 of the Limitation of Actions Act Cap 22 Laws of Kenya which states that an action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person. 4. That further, the Plaint offends the clear provisions of Order 2 Rule 10 of the Civil Procedure Rules that state, Subject to subrule (2), every pleading shall contain the necessary particulars of any claim, defense or other matter pleaded including, without prejudice to the generality of the foregoing - (a)particulars of any misrepresentation, fraud, breach of trust, willful default or undue influence on which the party pleading relies. 5. That the said Plaint therefore offends the established procedure of law and is fatally defective, thus incapable of conferring any jurisdiction upon this Honourable Court. 6. That in the premises, the Plaint and the entire suit are bad in law, frivolous, vexatious, and otherwise an abuse of the court process and should be struck out with costs to the Defendant. 7. The parties agreed to have the preliminary objection canvassed through written submissions which the Court has considered. 8. The Plaintiff filed submissions dated 09/03/2026 through the firm of Victor L. Andande and Company Advocates. They submitted that from the positions taken in the cases of Mary Nduta Mutungi & 5 others v Wambui Njenga & 2 others (2017) KECA 384 (KLR) and Karimi v Sanga & 3 others (2022) KEELC 3180 (KLR), it is evident that after promulgation of the 2010 Constitution, courts are reluctant to strike out adverse possession suits commenced by way of Plaint. They submitted that the suit involves complex issues which would have necessitated the Originating Summons to be converted into a Plaint. They submitted further, that the failure to particularize ingredients of a trust, if a valid issue, ought to have been raised in a defence and at trial and not as a preliminary objection. They pointed out that the Defendants had failed to file a defence and only resorted to filing the Preliminary Objection. 9. The Defendant filed submissions dated 11/03/2026 through the firm of M/S Angela Nyagah, Advocates. He submitted that the preliminary objection meets the threshold set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 and that it raises points of law. He submitted that Section 38(1) of the Limitation of Actions Act and Order 37 Rule 7(1) of the Civil Procedure Rules mandatorily require a claim of adverse possession to be commenced by way of originating summons, and that the Plaintiffs could not circumvent this requirement by pleading adverse possession as an alternative claim. It was further submitted that the Plaint improperly combines mutually inconsistent doctrines of trust and adverse possession, since adverse possession is founded on hostile occupation whereas a trust recognises the registered owner's title. 10. The Defendant further argued that the Plaint does not disclose a legally sustainable claim of trust as it fails to comply with Order 2 Rule 10(1) of the Civil Procedure Rules by omitting the necessary particulars, including the nature of the trust, the date of its creation, the circumstances under which it arose, the acts constituting breach, and the beneficial shares claimed. It was the Defendants proposition that claims founded on breach of trust, like fraud, must be pleaded with precision. Lastly, the Defendant submitted that the suit is statute barred under Section 7 of the Limitation of Actions Act since the orders registering the suit properties in the deceased's name were issued on 06/02/1986. He averred that any claim to recover land decades later is therefore statute barred. The Defendant submitted that the court lacks jurisdiction to entertain the suit or extend time, and consequently prayed that the Plaint be struck out with costs. 11. I have considered the Preliminary Objection and the parties’ submissions. The issue for determination is whether the Preliminary Objection has merit. 12. The circumstances in which a preliminary objection may be raised was laid out by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd (1969) EA 696, as follows: “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.” The effect of a preliminary objection if upheld, renders any further proceedings before the court impossible or unnecessary. Thus a preliminary objection may only be raised on a “pure question of law”. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.” 1. The Defendant's Preliminary Objection is premised on three principal grounds. First, that the Plaintiff's claim for adverse possession is incompetent for having been commenced by way of a Plaint contrary to the mandatory provisions of Section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules. Secondly, that the suit is statute barred under Section 7 of the Limitation of Actions Act. Thirdly, that the Plaint contravenes Order 2 Rule 10 of the Civil Procedure Rules by failing to plead the particulars of the alleged trust. 2. There is no dispute that Order 37 Rule 7 of the Civil Procedure Rules provides that a claim for adverse possession should ordinarily be commenced by way of Originating Summons. However, in the present case, the Plaintiffs have not brought a claim founded exclusively on adverse possession. The Plaint also advances a claim founded on customary trust. Whether those claims are properly pleaded, and whether they can ultimately succeed, are matters that can only be determined after the Court has had the benefit of the evidence. In addition to that, the authorities cited by the Plaintiffs in their submissions demonstrate that the courts have held that a claim for adverse possession can be commenced by way of Plaint. [See also the case of Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] KECA 248 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2016/248/eng%402016-10-14) where a similar position was taken by the Court of Appeal. In the circumstances, I am not persuaded that the mere fact that the claim was commenced by way of a Plaint renders the suit fatally defective. This ground of objection therefore fails. 3. The Defendant's contention that the suit is statute barred under Section 7 of the Limitation of Actions Act is equally without merit. Section 7 of the Act provides that; “An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.” 1. The Defendant's reliance on that provision is however misplaced. This is because, a claim for adverse possession is not defeated by the expiry of the statutory limitation period of twelve years rather, it is founded upon it. The right to seek to registration as proprietor by way of adverse possession under Section 38 of the Limitation of Actions Act only accrues upon the expiry of twelve years of open, continuous and uninterrupted possession. Equally, the Plaintiff's other claim founded on customary trust is not defeated by the limitation period prescribed under Section 7 of the Act. This ground of objection likewise fails. 2. I am also not persuaded by the Defendant's contention that the Plaint is fatally defective under Order 2 Rule 10 of the Civil Procedure Rules for failure to plead sufficient particulars of the alleged customary trust as that omission is not fatal to the suit. It is a defect that can be cured by amendment and does not render the suit fatally defective. This ground of objection also fails. 3. The Defendant further contended that the Plaint is fatally defective, incapable of conferring jurisdiction upon this Court, and that the suit is frivolous, vexatious and an abuse of the court process. In my view, these grounds do not raise pure points of law as contemplated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd(1969) EA 696 as they require consideration of the pleadings and the facts of the case to determine the same which goes beyond the scope of a preliminary objection. 4. In the result, I find that the Preliminary Objection dated 01/10/2025 is devoid of merit and the same is hereby dismissed with costs to the Plaintiffs. **DATED, DELIVERED AND SIGNED AT EMBU THIS 23RD DAY OF JULY, 2026.** **…………………………….** **HON. E.C CHERONO** **ELC JUDGE, EMBU** In the presence of; 1. Mr. Andande for the plaintiff 2. Defendant/Advocate-absent 3. Ruth C/A