https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3823

Muchena (Suing as the Administrator of the Estate of the Late Amos Muchena M’arimi) v Kibati (Sued as the Liquidator of Nkando Farmers’ Cooperative Society Ltd) & 2 others (Enviromental and Land Originating Summons E040 of 2025) [2026] KEELC 3823 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEELC 3823 (KLR) Republic of Kenya In the Environment and Land Court at Meru Enviromental and Land Originating Summons E040 of 2025 JO Mboya, J June 19, 2026 Between Esther Mpandi Muchena [Suing as the Administrator of the Estate of the Late Amos Muchena M’Arimi] Plaintiff and Samson Micheni Kibati [Sued as the Liquidator of Nkando Farmers’ Cooperative Society Limited] 1st Defendant Land Registrar , Meru County 2nd Defendant County Surveyor, Meru County 3rd Defendant Judgment 1.Before me is the Originating Summons dated the 01.12.2025; brought pursuant to the Provisions of Sections 17 and 38 of the Limitations of Actions Act, Chapter 22 Laws of Kenya ; Section 22 of the Survey Act, Chapter 299 Laws of Kenya and Order 37 Rule 7 of the Civil Procedure Rules , 2010; and wherein the Plaintiff has sought various reliefs. 2.The reliefs sought as hereunder:I.That the County Surveyor, Meru County be ordered to visit the suit property herein to specify the boundaries and delineate the extent of the suit property known as Land Parcel No. Timau/Timau Block 7/581 [Nkando Farmers] in the accordance to Section 22 of the Survey Act [Cap 299] and/or such specific extent and description of land as shall be determined and delineated by the County Surveyor, Meru County.II.That this Honourable Court be pleased to declare that Applicant Esther Mpandi Muchena is the rightful owner of the Parcel No. Timau/Timau/block 7/581 [Nkando Farmers] on the resultants parcel number [s] arising from the county surveyor’s delineation of the area occupied by the Plaintiff, to the Plaintiff herein.III.That in the alternative to prayer 1 above, this Honourable court be pleased to declare that the Applicant, Esther Mpandi Muchena, has acquired Parcel Number[s] arising from the county surveyor’s delineation of the area by adverse possession.IV.That the registrar of Lands, Meru County, be ordered to transfer Land Parcel No. Timau/Timau Block 7/581 [Nkando farmers] or the resultant parcel as defined by the County Surveyor, to the Plaintiff /applicant. That the Deputy Registrar of this court do sign the application for Land Control Board, transfer documents and any other application and documents necessary to facilitate transfer of Land parcel number No. Timau/Timau block 7/581 [Nkando farmers] or the resultant parcel number[s] arising from the county surveyor’s delineation or the area to the Plaintiff /applicant.V.That a permanent injunction does issue restraining the defendants or any person purporting to act on their behalf of their offices, their servants, workmen, licenses, agents from howsoever offering for sale, allotting, subdividing, taking over, dispossessing, alienation, reclaiming, and or harassing the applicant or interfering with her peaceful entitlement , occupation and possession of the Timau/Timau Block 7/581 [Nkando Farmers] resultant parcel number[s] arising from the county surveyor’s delineation or the area to the Plaintiff /applicant.VI.That the costs of the summons be provided for. 3.The Originating Summons is predicated upon various grounds. The grounds are: The suit property, namely; LR. No. Timau/Timau Block 7/581 belongs to and is registered in the name of Nkando Farmers Cooperative Society Limited [hereinafter referred to as the society]; the Plaintiff ’s late husband was a member of the said society; the Plaintiff ’s late husband bought a share of the society’s land; the Plaintiff ’s late husband also bought shares from other members of the society; the Plaintiff ’s husband entered upon, took possession of and remained in occupation of the named suit property until his death; the Plaintiff herein has remained in occupation to date; the Plaintiff ’s occupation has been open, continuous, and uninterrupted; the occupation has subsisted for more than 12 years; and the 1st defendant has never taken steps to recover vacant possession of the suit property. 4.Additionally, the Plaintiff has posited thus: The occupation of the suit property has been hostile and adverse to the rights of the 1st defendant; the 1st defendant’s ownership rights to the suit property have since terminated; and the Plaintiff has acquired adverse possessory rights to and in respect of the suit property. 5.The summons is supported by the affidavit of Esther Mpandi Muchena [the Plaintiff]. The affidavit is sworn on the 01.12.2025 and the deponent of the affidavit has reiterated and reaffirmed the grounds contained at the foot of the summons. In addition, the deponent has averred that the suit property lawfully belongs to the estate of the deceased; and the suit property was included at the foot of the certificate of confirmation of grant in the estate of Amos Muchena M’Arimi [deceased]. 6.The deponent of the supporting affidavit has thereafter proceeded to and annexed assorted documents thereto. The documents are: Copy of the register of the society [sic] containing entries in respect of parcel 581; copy of photographs showing [sic] the developments on the suit property; copy of the certificate of death of Amos Muchena M’Arimi; and copy of the affidavit sworn by one Jackson Mworia. Furthermore, the deponent has also annexed a copy of the gazette notice relating to the appointment of the 1st defendant as the liquidator of the society. 7.Though the defendants were duly served, none of the defendants duly entered appearance or filed a replying affidavit. In addition, none of the defendants participated during the hearing of the matter. 8.The originating summons was subjected to the usual directions under the provisions of Order 37 Rules 16, 17 and 19 of the Civil Procedure Rules, 2010. To this end, the court issued directions thus: The originating summons and the supporting affidavit shall be deemed as the plaint; the matter shall be heard vide viva voce evidence; the Plaintiff shall be at liberty to file list and bundle of documents, list of witnesses, and witness statements. 9.On the hearing date, the Plaintiff testified and called one witness. The Plaintiff ’s testimony was to the effect that same was the widow of Amos Muchena M’Arimi [deceased]. To this end, the Plaintiff averred that she has since procured and obtained a grant of letters of Administration in respect of the estate of the deceased. In addition, the witness averred that on the basis of the letters of administration, same is seized of the capacity to act on behalf of the estate of the deceased. 10.Additionally, the witness posited that she had recorded a witness statement dated the 01.12.2025 and which witness statement, the witness sought to adopt and rely on as her evidence in chief. Instructively, the witness statement was duly adopted and constituted as the evidence of the witness. 11.Furthermore, the witness alluded to the supporting affidavit sworn on the 01.12.2025 and thereafter sought to rely on the same as further evidence in chief. To this end, the supporting affidavit was adopted and constituted as the further evidence in chief of the witness. 12.It was the further testimony of the witness that same has also filed a list and bundle of documents dated the 01.12.2025, containing 7 documents. Thereafter, the witness sought to adopt and rely on the documents as exhibit before the court. Suffice it to state that the documents were duly admitted and constituted as exhibits P1 – 7, respectively. 13.Other than the foregoing, the witness adverted to the originating summons dated the 01.12.2025 and sought to adopt the contents thereunder. The witness also invited the court to grant the reliefs highlighted at the foot of the originating summons. 14.The 2nd witness who testified on behalf of the Plaintiff was Jackson Mworia. The witness testified as PW2. 15.It was the testimony of the witness that same is familiar with the facts of the case. In addition, the witness averred that same has sworn an affidavit in respect of the matter. Thereafter, the witness sought to adopt and rely on the affidavit sworn on the 01.12.2025, as his evidence in chief. The affidavit under reference was duly adopted and constituted as the evidence in chief of the witness. 16.With the foregoing testimony, the Plaintiff ’s case was closed. 17.I have mentioned elsewhere hereinbefore that the defendants neither entered appearance nor filed any response to the originating summons. In this regard, the defendants’ case was closed. 18.Following the conclusion of the hearing, learned counsel for the Plaintiff sought liberty to file written submissions. In this respect, the court proceeded to and gave directions pertaining to and concerning the filing of written submissions. In particular, the court directed that the submissions be filed within 7 days. 19.The Plaintiff filed written submission dated the 02.06.2026 and wherein same has highlighted and canvassed three [3] key issues. The issues are: Whether the suit is properly before the court notwithstanding the absence of prior leave to sue the liquidator [1st defendant]; whether the Plaintiff has established a claim for adverse possession; and whether the Plaintiff is entitled to the reliefs sought. 20.Regarding the first issue, learned counsel for the Plaintiff has submitted that the provisions of Section 432 of the Insolvency Act; and the Cooperative Society’s Act; require that a party must obtain leave of the court before commencing a suit against the liquidator. However, learned counsel has posited that no such leave was obtained prior to and before the filing of the subject suit. 21.Be that as it may, it has been submitted that even though no leave was sought and obtained before the filing of the suit, the failure to obtain leave does not vitiate the suit. In any event, it was contended that the failure to obtain leave is curable vide Article 159 [2] [d] of the Constitution, 2010. 22.Secondly, learned counsel for the Plaintiff has submitted that the Plaintiff has been in possession and occupation of the suit property for more than 12 years. In particular, it was submitted that the Plaintiff has been in occupation since the year 1992. In this regard, learned counsel submitted that the occupation of the suit property by/on behalf of the Plaintiff meets/satisfies the conditions to warrant the grant of the orders sought. 23.It was the further submissions by learned counsel for the Plaintiff that by the time the society was being placed under liquidation, the society’s rights to the suit property stood extinguished on the basis of Limitations of Actions Act. Consequently, it has been posited that the placement of the society under liquidation did not defeat the accrued rights of the Plaintiff under the Limitations of Actions Act, Chapter 22, Laws of Kenya. 24.Finally, it has been submitted that the Plaintiff has placed before the court sufficient material including photographs showing the developments that have been undertaken on the suit property by the Plaintiff; and which photographs, it has been contended, suffice to prove occupation and possession on behalf of the Plaintiff. 25.Flowing from the foregoing, the court was invited to find and hold that the Plaintiff has established a basis to warrant the grant of the reliefs sought. To this end, the court was implored to proceed and decree that the Plaintiff has acquired adverse possessory rights to and in respect of the suit property. 26.Having reviewed the Originating Summons dated the 01.12.2025; the supporting affidavit thereto; the annextures attached to the supporting affidavit; the evidence tendered; and upon taking into account the submissions by /on behalf of the Plaintiff, three [3] key issues crystalize for determination. The issues are: Whether the Plaintiff ’s suit is competent and legally tenable; Whether the reliefs sought and the cause of action pleaded can be canvassed vide originating summons or otherwise; and Whether the Plaintiff has proven the requisite elements that underpin adverse possession [if at all]. 27.Regarding the first issue, it is important to recall and reiterate that the Plaintiff herself has conceded that Nkando Farmers’ Cooperative Society, was indeed placed under liquidation. In addition, the Plaintiff has asserted that the 1st defendant was thereafter appointed and constituted as the liquidator of the society. To this end, the Plaintiff tendered and produced a copy of the gazette notice dated the 30.07.2021. 28.Furthermore, it is worth recalling that the learned counsel for the Plaintiff has submitted that leave to file the suit against the 1st defendant was needed, before and or prior to the filing of the suit. However, it has been admitted, nay, conceded that no such leave was ever sought and or obtained by the Plaintiff. 29.Be that as it may, learned counsel for the Plaintiff has posited that the failure to procure and obtain the leave of the Court to file the suit against the 1st defendant, does not vitiate the suit. On the contrary, it was contended that the failure to procure leave in accordance with the Provisions of Section 432 of the Insolvency Act, is remediable by the Provisions of Article 159 [2] [d] of the Constitution, 2010. 30.My take on the failure to obtain leave to file the current suit against the 1st defendant who is [sic] the primary party as pertains to the plea of adverse possession is to the effect that such failure goes to the root of the suit; and thus, deprives this court of jurisdiction to entertain the suit and engage with the reliefs that have been sought. 31.In addition, I wish to point out that the requirement to procure and obtain leave before filing a suit against a company or a society that has been placed under liquidation, is not a procedural technicality. It is a substantive procedural matter and does not therefore lend itself to the provisions of Article 159 [2] [d] of the Constitution, 2010. 32.In the case of John Githaiga Gachungwa & 3 others v Commissioner for Co-Operative Development & 2 others [2014] KEHC 4531 (KLR), the court dealt with the legal implications attendant to failure to obtain leave before commencing suit against a cooperative society under liquidation. The court stated thus:“I have perused the file herein and I have not come across any application for leave prior to commencement of the present suit. It may be missing in the file considering the matter has been around since 2009. However, if such leave was never sought prior to the commencement of this suit, its competence comes into issue in the light of section 228 of the Companies Act.The rationale for the requirement of leave is that all claimants against a company in liquidation ought to lodge proof of debt unless such claimant can show why bypassing that procedure is warranted. The reason for control over litigation is that in most cases liquidators and receivers do not have sufficient funds to defend court actions.” 33.To my mind, the suit beforehand is void ab intio. No amounts of legal arguments, or the invocation of Article 159 [2] [d] of the Constitution, 2010 can salvage it. The suit is dead. Moreover, the provisions of Article 159[2] [d] of the Constitution, 2010, is never a panacea for failure to comply with the substantive provisions of the Law. [ See the holding in the case of Mumo Matemu versus Trusted Society of Human Rights Alliance and Others [2013] eklr] 34.Other than the failure to procure leave before filing the suit, which has been discussed in the presiding paragraphs, there is also the question as to whether the 1st defendant is still the appointed liquidator of the society to warrant being sued. 35.The Plaintiff tendered before the court a copy of the gazette notice published on the 30.07.2021 and wherein the commissioner for Cooperative development indicated that the appointment of the 1st defendant to act as the liquidator was being extended for one year. The extension under reference was to run from the date of the gazette notice. 36.In my humble computation, the term of the 1st defendant as the liquidator of the society, lapsed and stands extinguished by operation of the law. It then means that the 1st defendant could not be sued under the pretext that same is [sic] the liquidator of the Society in question. 37.In a nutshell, there is no gainsaying that the Plaintiff’s suit was not only premature but misconceived. The Plaintiff ’s suit is hopelessly bad in the eyes of the law. It is incapable of redemption. [See the decision of the court of appeal in Deposit Protection Fund Board in Liquidation of Euro Bank Limited (In Liquidation) v Rosaline Njeri Macharia & another [2016] KECA 804 (KLR)]. 38.I would have terminated the Judgment at this point. However, for the sake of completeness, I shall venture forward and address the two outstanding issues, albeit in brief. In regard to the second issue, it is apparent from the face of the originating summons that the Plaintiff is seeking a plethora of reliefs. The reliefs include: commanding the County Surveyor to proceed to the suit property and undertake survey; boundary determination; and ascertainment of the scope of the land [if at all] occupied by the Plaintiff. The Plaintiff further seeks a declaration that same is the owner of the land or the resultant parcel numbers arising from the surveyor’s report. 39.Further, and in the alternative, the Plaintiff has also sought for a declaration that same has since acquired the suit Land vide adverse possession. However, it suffices to state that the prayer for adverse possession has been made in the alternative; and in any event, has been accompanied by other prayer[s], which do not fall within the purview of Order 37 of the Civil Procedure Rules, 2010. 40.I am alive to the provisions of Order 37 Rule 1 of the Civil procedure Rules, 2010. The named provisions highlight the kind of reliefs that can be sought vide the originating summons. However, it is common ground that the process of originating summons cannot be deployed in respect of matters involving disputed and complex factual issues. In addition, it can also not be invoked where questions of survey has to be undertaken under the Survey’s Act, Chapter 299, Laws of Kenya. 41.Despite the clear provisions of Order 37 of Rule 1 of the Civil Procedure Rules, 2010, the Plaintiff has approached the court vide the originating summons. To my mind, the procedure that has been invoked and deployed by the Plaintiff herein renders the suit invalid. 42.In the case of Karanja & 3 others (As Legal Representative of the Estate of the Late Walter Karanja Muigai) v Kirundi & another [2016] KECA 292 (KLR), the court highlighted and discussed the circumstances under which originating summons can be deployed. In addition, the court clarified that originating summons cannot be deployed where the facts are complex and require ascertainment by adduction of evidence in the Conventional manner. 43.The court stated thus:“This court has had occasion to address the issue of bringing a suit by way of an originating summons when the case is fret with complex issues. In the case of Wepukhulu Vs Secretary Board Of Governors Buruburu Secondary School [200] 1KLR 473-the Court of Appeal held:-“The procedure of originating summons is designed for summary or ad hoc determination of points of law, construction of certain specific facts or obtaining specific directions of the court such as trustees, administrators or the courts execution officers. The procedure should not be used for the determination of matters that involve serious questions or determination of disputed questions of fact. See Kenya Commercial Bank Ltd – vs – Osebe (1082) KLR 296. What happened in the trial is that the issues of fact were fully determined by way of a trial by production of oral evidence. Though no objection was raised as to the appropriateness of the originating summons before the trial commenced or at the first instance, the fact remains that the dispute before the learned judge was outside the ambit of the originating summons and the procedure was wrong.” 44.Next is the issue as to whether the Plaintiff proved adverse possession [if at all]. The Plaintiff contended that she has been occupation and possession of the suit property for more than 12 years. In an endeavor to convince the court as pertains to occupation, the Plaintiff tendered assorted photographs. However, it is common ground that the photographs were not accompanied by the requisite electronic certificate in terms of Section 106 B of the Evidence Act, Chapter 80 Laws of Kenya. 45.The importance of Section 106 B of the Evidence Act [supra], was highlighted in the case of County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others [2015] KECA 397 (KLR). The court stated as hereunder:“ 65.Section 106B of the Evidence Act states that electronic evidence of a computer recording or output is admissible in evidence as an original document “if the conditions mentioned in this section are satisfied in relation to the information and computer.” 66.In our view, this is a mandatory requirement which was enacted for good reason. The court should not admit into evidence or rely on manipulated (and we all know this is possible) electronic evidence or record hence the stringent conditions in sub-section 106B(2) of that Act to vouchsafe the authenticity and integrity of the electronic record sought to be produced. For ease of reference, we wish to reproduce Section 106B of the Evidence Act in its entirety:“106B(1)Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer (herein referred to as computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein where direct evidence would be admissible.(2)The conditions mentioned in subsection (1), in respect of a computer output, are the following—(a)the computer output containing the information was produced by the computer during the period over which the computer was used to store or process information for any activities regularly carried out over that period by a person having lawful control over the use of the computer;(b)during the said period, information of the kind contained in electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;(c)) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its content; and(d)the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.(3)Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in paragraph (a) of sub section (2) was regularly performed by computers, whether—(a)by combination of computers operating in succession over that period; or(b)by different computers operating in succession over that period; or(c)in any manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, then all computers used for that purpose during that period shall be treated for the purposes of this section to constitute a single computer and references in this sections to a computer shall be construed accordingly.(4)In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following—(a)identifying the electronic record containing the statement and describing the manner in which it was produced;(b)giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;(c)dealing with any matters to which conditions mentioned in sub-section (2) relate; and(d)purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate), shall be evidence of any matter stated in the certificate and for the purpose of this subsection it shall be sufficient for a matter to be stated to be the best of the knowledge of the person stating it.(5)For the purpose of this section, information is supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of an appropriate equipment whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purpose of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities.” 67..In relation to this case, the relevant conditions in that section are(a)if the computer output was recorded by a person having lawful control over the computer used;(b)if the output was recorded in the ordinary course of that person’s activities using a computer or some other electronic devise and fed into a computer that was properly operating throughout the material period; and(c)if that person gives a certificate that to the best of his knowledge, the output is an electronic record of the information it contains and describes the manner in which it was produced.” 46.Bearing in mind the apt discussion by the court of appeal in the decision [supra], it is my finding and holding that the photographs that were tendered and relied on by the Plaintiff are merely ornamental and cosmetic. The photographs are devoid of probative value. Conclusion 47.It is the Plaintiff who approached the court seeking to be declared as the owner of the suit property. The declaration was to be made as against the 1st defendant who is [sic] contended to be the liquidator of the society. However, the totality of the evidence tendered by the Plaintiff did not authenticate the capacity of the 1st defendant. 48.Furthermore, it behooved the Plaintiff to comply with the mandatory provisions of Section 228 of the Companies Act; and Section 432 of the Insolvency Act. Simply put, it was incumbent upon the Plaintiff to procure and obtain leave from the High Court, before commencing on the instant suit. No such leave was ever obtained. 49.The failure to obtain leave rendered the entire suit void from the onset. The suit was/is incapable of redemption. In simple terms, the suit was dead before arrival; and the Plaintiff was non-suited. Final orders: 50.Flowing from the analysis in the body of the Judgment, it must have become apparent that the suit was premature; misconceived; and legally untenable. The suit is surely a candidate for dismissal. 51.In the premises, the final orders that commend themselves to the court are:[i].The Suit be and is hereby Dismissed[ii].No orders as to costs. 52.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU THIS 19TH DAY OF JUNE, 2026OGUTTU MBOYA, FCIArb; CPM [MTI].JUDGEIn the presence of:Court Assistant: ZakayoMr. Waweru for the Plaintiff.N/a for the Defendants.