https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4037

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELCLC NO. E011 OF 2026** IN THE MATTER OF THE LAND REGISTRATION ACT, 2012 AND THE LAND AT, 2012 IN THE MATTER OF SECTIONS 2, 17, AND 38 OF THE LIMITATION OF ACTIONS ACT, CAP 22 AND IN THE MATTER OF AN APPLICATION TO BE REGISTERED BY ADVERSE POSSESSION DISMASS MBUYA OBAGO ………………….. 1ST PLAINTIFF/APPLICANT JOHNANNES AKELLO OBAGO …………..… 2ND PLAINTIFF/APPLICANT VERSUS MARY ANYANGO …………………….……. DEFENDANT/RESPONDENT **R U L I N G** The Notice of Motion application dated 19th February, 2026 was brought by the Plaintiffs under the provisions of sections 1A, 1B, 3A of the Civil Procedure Act and Order 40 Rules 1 & 2 Civil Procedure Rules. The application seeks an order of temporary injunction restraining the Respondent of her own, her agents, servants and/or employees and/or any other person claiming through her from trespassing onto, developing, alienating, disposing off or in any other way howsoever, interfering with the Plaintiff’s quiet and peaceful occupation and use of the suit parcels of land herein designated as KISUMU/KORANDO/744 and KISUMU/KORANDO/745 each measuring 0.20 Hectares. The application also seeks that costs be provided for. The application was supported by the grounds contained in the Supporting Affidavit sworn by Dismas Mbuya Obago, the 1st Applicant, on 19th February 2026, on his own behalf and with the authorization of the 2nd Applicant. The application was opposed by the Respondent, who filed a Notice of Preliminary Objection dated 18th March, 2026 and a Replying Affidavit sworn on 22nd April, 2026. Directions were given on 19th March, 2026, that the application and the Preliminary Objection be heard together by way of written submissions. Vide the Notice of Preliminary Objection dated 18th March, 2026, the Respondent sought that the application and the suit be struck out on the grounds that the Originating Summons is fatally defective/incompetent and offends the provisions of section 38 of the Limitation of Actions Act, the Defendant is not the registered owner of the suit lands and that the registered owner of the suit lands are deceased and the Defendant is not the administrator of the estate of the deceased parties, namely Stanslaus Ayieko and Ogada Andiego. Secondly, that the Plaintiffs who claim adverse possession on behalf of their deceased father lack *locus standi* to institute the suit as they are neither the Administrators nor Personal Representatives of the estate of their late father, one Ibrahim Obago Okoyo. Further, that the orders in the application dated 19th February, 2026, are sought prematurely as a declaration has not been made as to ownership by way of adverse possession or lack thereof. It was submitted on behalf of the Defendant/Respondent on the Preliminary Objection that the Originating Summons cannot be sustained against the Defendant, who is not the registered owner of the suit land. Counsel cited the case of *Mtana Lewa -vs- Kahindi Ngala Mwangandi [2005]eKLR* and submitted that it is apparent that the suit discloses no reasonable cause of action against the Defendant, who is neither the registered owner of the suit lands nor the Personal Representative of the estate of the deceased registered owners. That the Defendant lacks the capacity to defend the suit. Relying on the case of *Alfred Njau & Others -vs- City Council of Nairobi (1982)KAR 229 and Isaya Masira Momanyi -vs- Daniel Omwoyo & Another [2017]KEHC 2083 (KLR),* where it was held, inter alia, that a party cannot commence a suit on behalf of the estate of a deceased person without Letters of Administration, Counsel submitted that the Plaintiffs lack *locus standi* to institute the Originating Summons on behalf of their deceased father. On behalf of the Plaintiffs/Applicants, it was submitted that the preliminary objection does not qualify as a Preliminary Objection. That the Respondent alludes to several factual issues that cannot simply be determined based on the pleadings filed without the opportunity to factually interrogate the same. That the Preliminary Objection is not based purely on clear and uncontested points of law, as a critical ingredient of what would amount to a preliminary objection. That the Preliminary Objection should not be treated as such. I have considered the points raised in the Notice of Preliminary Objection and the submissions thereon by both parties. As submitted on behalf of the Respondent, the threshold of a preliminary objection as contained in the case of *Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd (1969)EA 696* is that a preliminary objection must be based on pure points of law, must arise from the pleadings, may dispose of the suit if argued as a pure point of law and must be argued on the assumption that all facts pleaded by the opposite party are correct; it cannot succeed if any fact has to be ascertained; or if what is sought is the exercise of the court’s discretion. The substantive point of objection raised in the Preliminary Objection is the capacity or *locus standi* of the parties to sue and be sued. This is a point of law which must be present and evident from the very inception of a suit. A suit brought by a party who has no capacity to sue or against a party with no capacity to be sued is an incompetent suit. The claim before the court is based on adverse possession. The essence of the doctrine of adverse possession is that there is a registered owner of the subject land who has failed to act to assert his/her right/title to the subject land against a trespasser/intruder/adverse possessor who is in exclusive possession for a period of 12 years from the time of trespass or intrusion. See the case of *Mtana Lewa –vs- Kahindi Ngala Mwagandi [2015] e KLR,* relied on by the Plaintiff herein, where the Court of Appeal held that: “Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it, and the person having title omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, twelve (12) years. The process springs into action essentially by default or inaction by the owner. The essential prerequisites being that possession of the adverse possessor is neither by force nor stealth nor under the license of the owner. It must be adequate in continuity, in publicity, and in extent to show that possession is adverse to the title owner.” Section 7 of the Limitation of Actions Act bars the said registered owner from bringing an action for the recovery of the land from the trespasser. Section 17 declares the title of the registered owner as having become extinguished at the expiry of the 12-year limitation period, and Section 38 provides the trespasser who has met the threshold of adverse possession, the manner of acquisition of title to the land. Order 37 Rule 7(2) requires that an Originating Summons seeking a declaration that a proprietor has become entitled to land under adverse possession “shall be supported by an affidavit to which a certified extract of the title to the land in question has been annexed.” The essence of this requirement is first to confirm the existence and status of the subject land and to ascertain from the outset of the suit that the land is registered in the name of the person sued or whose personal representative is sued. Section 38 directs that the Originating Summons shall seek orders that the intruder be registered as the proprietor of the land in place of the person then registered as the proprietor of the land. My understanding of this provision of the law is that the Originating Summons can only be sustainable against the registered owner or his personal representative. The Originating Summons herein was filed against MARY ANYANGO. The copies of the certificates of official search attached to the Supporting Affidavit to the Originating Summons show that land parcel No. KISUMU/KORANDO/744 measuring 0.20 Ha is registered in the name of SITANSLAUS AYIEKO, while KISUMU/KORANDO/745 is registered in the name of OGADA ANDIEGO. The Respondent is described in paragraph 4 of the Supporting Affidavit as a beneficiary of the estate of the said registered owners by virtue of being their surviving sister. There is no pleading in the Originating Summons or Supporting Affidavit that the Respondent is the Administrator/Personal Representative of the deceased registered owners. Under sections 2(1), 45, 79, and 82 of the Law of Succession Act, only persons appointed as Administrators/Personal Representatives of the deceased under the provisions of the Act have the capacity to deal in the property of the deceased. The same applies to the Plaintiffs, who describe themselves as children and beneficiaries of the estate of their father, Ibrahim Obago Okoyo, who had lived on the suit lands for about 30 years. There is no pleading that the Plaintiffs are the personal representatives of their father. The sum total of the foregoing is that the suit was filed by and against persons with no capacity to sue and to be sued. It is, therefore, an incompetent suit. No amount of amendment of the pleadings can give capacity to the parties. For the foregoing reasons, I find that the Preliminary Objection has merit and hereby uphold it with the result that the Originating Summons dated 19/2/2026, and the Notice of Motion application of even date are struck out. Costs are awarded to the Respondent. Orders accordingly. **Ruling dated and signed at Kisumu, read this 30th day of June, 2026, virtually, through Microsoft Teams online application.** **E. ASATI,** **JUDGE.** **In the presence of** Atika.. Court Assistant Anyumba h/b for Ouma for the Plaintiffs/Applicants. Soi h/b for Kubai for the Defendant/Respondent.