https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3282

Saka v Abuogi (Environment and Land Case Civil Suit E044 of 2025) [2026] KEELC 3282 (KLR) (8 May 2026) (Ruling) Neutral citation: [2026] KEELC 3282 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Environment and Land Case Civil Suit E044 of 2025 FO Nyagaka, J May 8, 2026 Between Paul Okeyo Opiyo Saka Applicant and Jafeth Elly Aboka Abuogi Respondent Ruling 1.Before me is a Preliminary Objection dated 4th August 2025. It was raised against the Plaintiff’s Originating Summons dated 23rd July 2025. The Summons was brought pursuant to Section 38 of the Limitation of Actions Act, Chapter 22 Laws of Kenya, and Order 51 Rule 1 and Order 37 Rule 7 of the Civil Procedure Rules 2010 as read together with Sections 1A, 1B and 3A of the Civil Procedure Act and “all other enabling provisions of the law”. 2.In the Originating Summons, the Applicant, Paul Okeyo Opiyo Saka, sued the Respondent claiming that he had acquired all that parcel of land LR. No. Kanyada/Kanyango/Kalanya/723 measuring approximately 0.65 hectares by virtue of adverse possession. He prayed for determination of the orders that the Court declares that he had acquired the land parcel by adversely and he was therefore entitled to be registered as the absolute owner; the County Lands Registrar of Homabay to be ordered to rectify land register with respect to the land parcel and register the Applicant as the owner; the Respondent be ordered to execute all documents of transfer in respect of the parcel of the suit land in favour of the Applicant, failure to which the Deputy Registrar be empowered to execute them on his behalf; an injunction restraining permanently the Respondent(s), their agents, servants or workers be from interfering in any manner whatsoever with the suit land; and the costs of the application be payable by the Respondent. 3.The Originating Summons was premised on the grounds that the Applicant had been in quiet, uninterrupted and actual occupation and use of the suit land for over 12 years, not withstanding that the respondent’s father had title by way of registration to it. The applicant entered the suit property sometime in the year 2012 without the consent of the proprietor. The applicant entered the suit property in the presence of the registered proprietor and took possession adversely and has remained thereon since then. The applicant was in actual, open and notorious possession of the suit property. The Applicant and his family had continuously utilized the suit property for the period of over 12 years to the exclusion of all others including the respondent. The applicant and his family had all along been known as the owners of the said parcels of land by the members of the community. It was in the interest of justice that the orders sought by the Applicant herein be granted. He supported the Summons by an Affidavit in which he deposed the contents above and added by way of an attachment marked as POOS 1 being a copy o copy of the green card of the suit land. 4.The Applicant filed an Amended Summons supported by his Affidavit which largely repeated the content of the grounds in support of the Summons but in deposition form. To it the Applicant added that (now) the respondent had been sued as the administrator of the Estate of Jafeth Elly Aboka. To the affidavit in support of the Amended Originating Summons, he annexed as POOS 1 the copy of the Grant Ad Litem and POOS 2 a copy o copy of the green card of the suit land. 5.The Amended Originating Summons was filed after the instant Preliminary Objection had been filed. The Objection was based on the following grounds:1.That the instant suit offends the provisions of Order 2 Rule 15 (1) and Order 24 Rules 4 and 5 of the Civil Procedure Rules, 2010.2.That the Respondent herein is deceased and this suit filed against him is null and void.3.That the court lacks jurisdiction to proceed against a deceased person as a party.4.That the suit should be dismissed with costs to the Respondent. 6.The preliminary objection was disposed of by well written submissions. The Applicant filed his Written Submissions dated 20th February 2026, regarding the Preliminary Objection. 7.He argued that the Respondent sought to defeat his suit at a preliminary stage through technical objections yet the issues raised were factual and contested. He contended that regarding the provisions of Order 2 Rule 15(1) and Order 24 Rules 4 and 5 of the civil procedure Rules 2010, the issue in for determination was whether the instant suit disclosed any reasonable cause of action since under the provision, the court may, at any stage of proceedings, strike out any pleadings if they disclose no reasonable cause of action or were vexatious and frivolous or delay trial. He then gave the definition of a cause of action as was given by Lord Pearson in Drummon-Jackson -vs B. M. A. (1970) 1 WLR 688. He concluded that in the instant case he had a cause of action because he filed the suit pursuant to Sections 7 and 38 of the Limitations Act. He reproduced Section 7 of the Act and argued that a reasonable cause of action should raise a question fit for the court to decide rather than being hopeless or beyond, if the suit has some chances of success based on the allegations of the Plaint/O.S. he relied on the case of D. T. Dobie & CO. (K) LTD -VS- Muchina & Another [1982] K.L.R, and Paul Kiptenai K. Bireh- Vs Nandiko Lukhubwa & Another 2018] KEELC 2963 KLR. He urged that the Objection be dismissed. 8.Regarding the contention that the suit offended Order 24 Rule 4 and 5 of the Civil Procure Rules, he submitted that the provision was about where one of two or more defendants dies and the cause of action does not survive or continues against the surviving defendants) or sole surviving defendant dies and the cause of action continues an Application can be made to cause the legal representative of the defendants) to be made as party and shall proceed with the suit. He submitted that the Orders as in (b) did not completely apply to the instant suit since the two provisions related to suits which had already been filed and the defendant (s) dies before the matter is heard and determined to its conclusion. 9.He argued that the instant suit was filed in 2025, after the death of the proprietor of land parcel in 2008 hence the death did not occur during the pendency of the suit. He concluded that the respondent was just “a busy body lacking what to do, clinging on to anything to survive like a drowning man holding into the last straw.” Thus, the Respondent was wasting court's precious time: his Preliminary objection held no water and should be dismissed 10.Regarding the Objection that the respondent was deceased hence the suit filed against him is null and void, the Applicant argued that the issue for determination was whether, indeed, the suit was null and void. He submitted that it is not in dispute that for a party to sue or be sued he/she must have locus standi. He added that on the 25th September 2025, leave was granted to the Applicant to Amend his pleadings to indicate the right party who was intended to be sued. He stated that the respondent had filed a Notice of Preliminary Objection on 4th August 2025 but failed to prosecute it for failure to attend court. By 27th November 2025 the Applicant filed an Amended Originating Summons by which he indicated the right party who ought to have been sued. Issue, Analysis And Determination 11.This court has considered the Objection, the law and the submissions of the parties. The issues for determination are whether the objection is merited, and who to bear the costs of either the objection only if it fails or of both the objection and the suit if the Objection succeeds. 12.The law governing preliminary objections was set out succinctly in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors. (1969) EA 696. In it, the court established the threshold that must be met in such objections. Accordingly, it held that:‘‘A Preliminary Objection consists of appoint of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as preliminary point may dispose of the suit. example is an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. A Preliminary Objection is in the nature of that used to be called 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.’’ (emphasis mine) 13.Also, the court in Saleh v Osano & another (Environment and Land appeal E031 of 2023) [2025] KEELC 1030 (3 March 2025) (Judgment) cited Oraro v Mbaja [2005]1KLR 141 where the court had held that that:A preliminary objection correctly understood is a point of law which must not be blurred with factual details liable to be contested and in ay event, to be proved through the process of evidence. Any assertion which claims to be preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication is not as a matter of legal principle, a true preliminary objection which the court should allow to proceed’’ 14.In the instant matter, the Defendant raised the objection as to the validity of the Originating Summons because the Applicant was said to have sued deceased person. As submitted by the Respondent himself, indeed, it is not in dispute that for suit to be valid, a party to sue or be sued must have locus standi. In essence, it means that the party must be alive if human and have capacity, or be in existence if the said party is not a living being. 15.In this instance, the Respondent submitted further that, the despite the fact that he sued a person who had died long before the suit was instituted, it was an error which was corrected through the leave granted on the 25th September 2025 for the Applicant to Amend his pleadings to indicate the right party who was intended to be sued, and he did so. The question that remains is whether a non existent party may be sued and the suit remains valid. 16.Under Order 1 Rule 10(1) of the Civil Procedure Rules, 2010, if a suit has been instituted in a wrong name, and the court is of the view that it was though a bona fide mistake, the court may allow substitution of that other person. There is no provision for institution of a suit against a non existent party. 17.Order 2 Rule 15(1)(a) of the Civil Procedure Rules provides that “At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that— (a) it discloses no reasonable cause of action or defence in law.” 18.It is now common ground that the defendant was long deceased before the suit was instituted. In my humble view, no amendment could cure such a grave defect. Not even Article 159(2)(d) of the Constitution can cure the defect since it is not a mere technicality. In any event, when the Defendant sought to amend the Originating Summons, he did not disclose the nature of the amendment he wished to introduce. For him to take advantage of the window given to him to sneak in a party so as to alter he character of the claim and try to salvage the suit once he faced a preliminary objection was irregular and an unfair practice. This court therefore agrees with the Respondent that the suit offends the provisions of Order 2 Rule 15 (1) of the Civil Procedure Rules, 2010 that it did not disclose any reasonable cause of action against a deceased person. Further, that the suit was against a deceased person hence the court lacked jurisdiction to proceed against such a party. 19.The objection therefore succeeds and the entire suit is struck out with costs to the applicant. The Respondent shall also pay costs of the Preliminary Objection. 20.Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 8TH DAY OF MAY 2026HON. DR. IUR NYAGAKA,JUDGEFrom 11:20 AM in the presence of,Ms. P. Ogutu Advocate for the ApplicantMs. Onono Advocate for the Respondent