https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3510

Mariga v Rubui & 4 others (Enviromental and Land Originating Summons E021 of 2025) [2026] KEELC 3510 (KLR) (10 June 2026) (Ruling) Neutral citation: [2026] KEELC 3510 (KLR) Republic of Kenya In the Environment and Land Court at Muranga Enviromental and Land Originating Summons E021 of 2025 MN Gicheru, J June 10, 2026 Between Mary Wambui Mariga Applicant and Jane Muthoni Wanderi Rubui 1st Respondent Wanjiku Wanjeri Rubui 2nd Respondent Wanjiru Wanderi Rubui 3rd Respondent Njeri Wanderi Rubui 4th Respondent Maina Wamakome Wanderi Rubui 5th Respondent Ruling 1.This ruling is on the notice of preliminary objection dated 18-11-2024. It reads as follows.i.The Respondents have no capacity to be sued in their individual capacities as they are neither administrators nor executors of the estate of Wanderi Rubui (deceased).ii.The suit property is in the name of the deceased, one Wanderi Rubui.iii.An estate of a deceased person cannot be subject of a claim for adverse possession.iv.The Applicant is prosecuting citation proceedings through the back door.v.This suit is res judicata.vi.The suit is statute barred as the alleged cause of action, if any, arose 24 years ago, namely in the year 2001, when the proposed agreement was entered into. 2.The facts of the according to the Plaintiff are as follows. One, in the year 2001, he bought L.R. No. Loc.20/Kambirwa/1905 from Jessee Mwangi Wanderi who is a son of Wanderi Rubui who is now deceased. He paid the full purchase price. Two, the deceased put the Plaintiff into possession of the suit land immediately after the sale agreement was signed. The Plaintiff has developed the land substantially. Three, the Respondents have filed Succession Cause No. 220 of 2002 at Murang’a Chief Magistrates Court but it has not been finalized. Four, the Applicant now seeks to be declared the owner of the suit land through the doctrine of adverse possession for having occupied the suit land for a period of over 21 years continuously and without interruption. 3.The Respondents have not filed any evidence. All that they have filed is the notice of preliminary objection.In addition to the preliminary objection, the Respondents’ counsel filed written submissions dated 20-4-2026. In the submissions, no issues have been framed. At paragraph 8 of the submissions a ruling dated 27-3-2025 has been mentioned. It is also mentioned in paragraph 14.The Appellant’s counsel also filed written submissions dated 15-3-2026 which do not identify any issues for determination. 4.I have carefully considered the preliminary objection and I find that the following issues arise.i.Whether it matters who the registered owner of the suit land is.ii.Whether the preliminary objection is anchored on any material filed by the Respondents or admitted by the Applicant.iii.Whether a claim for adverse possession by a person in occupation of land can be said to be time barred. 5.Even before I determine the above issues, I wish to state that the Respondents’ preliminary objection is not based on pure points of law. It is based on issues of facts which are neither pleaded by the Respondents nor admitted by the Applicant. For instance, ground 5 of the preliminary objection says that the suit is res judicata . It does not give any other details. It is only in the pleadings that the particulars of the other suit can be given. The Respondents assume that the Court knows about unpleaded facts. It is the duty of the Respondents to file pleadings replying to the claim by the Applicant. This did not happen in this case.In the case of Oraro vs. Mbaya the Court stated.“A preliminary objection correctly understood is now well identified 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 object, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not a true preliminary objection. Where a Court needs to investigate facts, a matter cannot be raised as a preliminary point.” 6.In a claim for adverse possession, the death of the registered owner does not interrupt the running of the time. Time continues running and it does not matter that the registered owner is deceased so long the key ingredients of adverse possession exist, that is to say, actual, open, exclusive, continuous and adverse possession for the statutory period. The second issue has been adequately determined at paragraph 5 above. The finding is that the preliminary objection is not properly anchored or admitted facts or facts pleaded by the Respondents themselves. 7.Regarding the final issue, going by the pleaded facts of this case, it cannot be said at this preliminary stage that the Applicants claim is time barred. The Plaintiff claims to have entered the suit land immediately after the agreement was signed and he has been in continuous possession. Whether this is true or not remains to be proved at the trial. The Respondents cannot therefore be heard to say at this preliminary stage that the case is time barred when they have not filed any evidence to prove this. If the Applicant is in occupation, then it means that the cause of action is a continuing one. 8.In conclusion and for the reasons given above, I find no merit in the preliminary objection dated 18-11-2025 which I dismiss.Costs in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 10TH DAY OF JUNE, 2026.M.N. GICHERU JUDGE.Delivered online in the presence of; -Court Assistant – AntonyApplicant’s Counsel – Mr. T.M. NjorogeRespondents’ Counsel – Mr. Kioko