Meteur (As representative/administrator of the Estate of Judith Ngeshi Moile - Deceased) & another v Moile & 2 others (Land Case E144 of 2025) [2026] KEELC 2931 (KLR) (15 May 2026) (Ruling)

Meteur (As representative/administrator of the Estate of Judith Ngeshi Moile - Deceased) & another v Moile & 2 others (Land Case E144 of 2025) [2026] KEELC 2931 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELC 2931 (KLR) Republic of Kenya In the Environment and Land Court at Kajiado Land Case E144 of 2025 MD Mwangi, J May 15, 2026 Between Daniel Moile Meteur (As representative/administrator of the Estate of Judith Ngeshi Moile - Deceased) 1st Plaintiff Shangwa Tukei Meteur 2nd Plaintiff and Jackson Sais Meteur Moile 1st Defendant Francis Mutunkei Tukei 2nd Defendant The Chairperson, Secretary & Treasurer (Officials Of The Former Elangata Wuas Group Ranch) 3rd Defendant Ruling 1.The Plaintiff’s instituted this suit vide the plaint dated 15th October 2025 which was subsequently amended on 27th January 2026. The Plaintiff’s case concerns the parcel of land known as Kajiado/Elangata -Wuas/540 which initially belonged to the late Ole Moile Meteur (deceased), a member of the defunct Elangata Wuas Group ranch by virtue of his membership No. 599. Upon the death of the late Ole Moile Meteur, prior to the dissolution of the group ranch, as per the customary practice and members’ agreement applicable at the time, the late Ole Moile Meteur was substituted by his heirs and their names placed in the register as follows:-A.The 1st Plaintiff, Shangwa Tukei Meteur;B.Judith Ngeshi Moile; andC.Jackson Saias Meteur (the 1st Defendant herein). 2.The Plaintiffs assert that the 3rd Defendant (former officials of the ‘Elangata Wuas Group Ranch’) in breach of their statutory duties under the repealed Land (Group Representatives) Act and the subsequent transitional provisions under the Community Land Act, 2016, in collusion with the 1st Defendant, negligently, fraudulently or irregularly submitted inaccurate details to the Land Registry resulting in the subject property being registered solely in the name of the 1st Defendant to the exclusion and the detriment of the interests the late Judith Ngeshi Moile and the 2nd Plaintiff. The registration not only deviated from the area list but also from the register. 3.It is further pleaded that on or about the month of May 2023, the 1st Defendant proceeded to sub-divide the suit property into 3 parcels known as Kajiado/Elangata-Wuas/3395, 3396 & 3397, with Kajiado/Elangata-Wuas/3397 being registered in the name of the 2nd Defendant. The Plaintiffs suspect that the 1st Defendant intends to dispose of or sell the two remaining parcels Kajiado/Elangata-Wuas/3395 and 3396 in attempt to permanently defeat their interests. 4.Whereas the Plaintiffs have always utilized the subject property for grazing their livestock for many years as family land, the 1st Defendant has threatened and indeed allegedly chased out the 1st Plaintiff and his animals out of the land accusing him of trespassing into ‘his land’. 5.The Plaintiffs assert that the Defendants’ actions amount to fraud, misrepresentation, breach of trust and violation of the Plaintiffs’ constitutional rights to property. The particulars of fraud, loss and damage are elaborated at Paragraph 18 of the amended plaint. 6.The Plaintiffs assert that the Defendants hold the subject property and its resulting subdivisions in trust for them in deducible shares. Consequently the Plaintiffs pray for orders inter alia for a declaration that the 1st and 2nd Defendants hold the sub-divisions in trust for them, a declaration that the registration of the subject property solely in the name of the 1st Defendant was irregular, unlawful and fraudulent and that the subsequent subdivision is null and void. The preliminary objection by the 1st and 2nd Defendants. 7.The 1st and 2nd Defendants raise four (4) grounds in their preliminary objection as hereunder;a.That the Plaintiffs’ suit is statute-barred by virtue of the salient provisions of Section 7 of the Limitation of Actions Act, CAP 22 Laws of Kenya.b.The Plaintiffs’ verifying affidavit to the plaint together with the supporting affidavit in support of the Notice of Motion application in question respectively, both sworn by the Plaintiffs on 15th October 2025 are incurably and fatally defective as they offend the salient and mandatory provisions of Order 4 rule 1, (2), (3) and Order 19 rules 3,4 and 5 of the Civil Procedure Rules.c.That the Notice of Motion application in question and the plaint herein are incompetent, an abuse of the process, and should be struck out with costs.d.That the Plaintiffs are otherwise guilty of material non-disclosure in light of the circumstances of the case bearing in mind the plaint, and the 1st & 2nd Defendants’ Statement of Defence. Directions of the Court. 8.The preliminary objection was argued orally before the court on 7th April 2026. The court has duly noted and considered the said submissions in the writing of this ruling. Issues for Determination. 9.The sole issue for determination is whether the preliminary objection by the 1st and 2nd Defendants is merited. Determination. 10.I will begin with the 3rd and 4th points raised in the notice of preliminary objection by the 1st and 2nd Defendants by restating the pronouncement of the court in the case of Bashir Abdullahi –vs- Adan Mohammed Nooru & 3 others (2004) eKLR, where the court was categorical that;“If a party wishes to raise a preliminary objection and files in court a notice to that effect and is subsequently served on other parties to the suit, the preliminary points should be sufficiently particularized and detailed to enable the other side and indeed the court to know exactly the nature of the preliminary points of law to be raised. To state that the application ‘is bad in law’ without saying more does not assist the other parties to the suit nor the court to sufficiently prepare to meet the challenge.…… such practice of course ought to be discouraged.” 11.The 1st and 2nd Defendants’ points (c) and (d) (above) are mere general statements without any particulars of the law that has been violated. Stating that the plaint or the application by the Plaintiffs is incompetent or an abuse of the process or as in point (d), that the Plaintiffs are guilty of material non-disclosure does not bring out any point of law. 12.The preliminary objections as formulated under points (c) and (d) is bare and devoid of any substance. The points are framed in such a way that it is impossible for the other parties to which they are addressed to counter them. They fail the precision test on all fours. 13.On the defective affidavits, retired Justice Ringera J (as he then was) comprehensively addressed the issue in the Microsoft Corporation Case {Microsoft Corporation –vs- Mitsumi Computer Garage Ltd & others (2021) eKLR}, stating that;“Rules of procedure are handmaidens and not mistresses of justice and should not be elevated to a fetish as theirs is to facilitate the administration of justice in a fair orderly and predictable manner, not fetter or choke it and where it is evident that the Plaintiff has attempted to comply with the rule requiring verification of a plaint but has fallen short of the prescribed standards, it would be to elevate form and procedure to a fetish to strike out the suit. Deviations from or lapses in form or procedure, which do not go to the jurisdiction of the court or prejudice the adverse party in any fundamental respect, ought not be treated as nullifying the legal instruments thus affected and the court should rise to its higher calling to do justice by saving the proceedings in issue…. The purpose for verifying the contents of the plaint may be attained by rejecting a defective affidavit and ordering that a fresh and complying one be made and filed on the record.” 14.While I strongly associate with the above position, the same is buttressed by the provisions of article 159 (2) (d) of the Constitution which command the courts in exercising their judicial authority to do so without undue regard to technicalities. This provision, as the Supreme Court pronounced in the case of Raila Odinga –vs- IEBC and others (2013) eKLR, simply means that courts should not pay undue attention to procedural requirements at the expense of substantive justice. 15.Striking out a suit on the basis of a non-complaint verifying affidavit would, in my opinion, amount to elevating rules of procedure to a fetish at the expense of substantive justice. 16.The last point in the preliminary objection is whether the Plaintiffs’ suit is statute barred by the provisions of section 7 of the Limitation of Actions Act. 17.In discussing this point, I note the protest by the advocate for the 1st and 2nd Defendant that the Plaintiffs had gone ahead to amend their plaint after they were served with the preliminary objection, with the intention to defeat their defence of limitation which had crystallized. 18.First and foremost, I understood the 1st and 2nd Defendants’ protestation to imply that the objection on statute bar was no longer tenable after the Plaintiffs amended their suit to include a claim for customary trust. That is indeed the correct legal position. 19.A claim for customary trust cannot be defeated by the defence of limitation. Customary trusts qualify as overriding interests that need not be noted in the register. 20.The Court of Appeal in Roche -vs- Roche & another (2025) KECA 1637 (KLR), affirmed the concept of customary trust stating that;“A customary trust in the context of Kenyan Land Law is legal concept where land is held by one person or entity, for the benefit of a group or family members often across generations. It is essentially an intergenerational equity concept where the current holder of the land is entrusted to hold or manage it for the benefit of another or others.” 21.The Court of Appeal further referred to the Supreme Court decision that settled the question of Customary Land held in trust in the case of Kiebia -vs- M’ Lintari & another (2018) KESC 22 (KLR), where the court stated as follows;“We now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration is one of the rights to which a registered proprietor, is subject under the provision to section 28 of the Registered Land Act. Under this legal regime (now repealed), the content of such a trust can take several forms.….. In this regard, we agree with the High Court in Kiarie -vs- Kinuthia, that what is essential is the nature of the holding of the land and the intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a Claimant as a trustee are;- 1.The land in question was before registration, family, clan or group land; 2.The claimant belongs to such family, clan or group; 3.The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous; 4.The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances; and 5.The claim is directed against the registered proprietor who is a member of the family, clan or group.” 22.The Plaintiffs moved to amend their plaint before pleadings had closed. They obviously did not require leave of the court to amend their pleadings. They were within their rights. 23.The circumstances of this case are clearly different from the circumstances in the case cited by the 1st and 2nd Defendants; James Ochieng Oduol T/A Ochieng Oduol & Co. Advocates -vs- Richard Kuloba, Nairobi Civil Appeal No. 2 of 2002, where the Court of Appeal explained circumstances under which leave to amend may be disallowed to a ‘negligent pleader’, off course after pleadings had closed. The case is clearly distinguishable from the case before this court. 24.The upshot is that the 1st and 2nd Defendants’ preliminary objection is devoid of merits and is hereby dismissed with costs to the Plaintiffs. Ordered accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF MAY, 2026.M.D. MWANGIJUDGEIn the virtual presence of:Ms. Mageto for the PlaintiffsMr. Opunga for the 1st and 2nd DefendantsN/A by the 3rd DefendantCourt Assistant: Alex