https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4161

Onduto v Ojuki & 6 others (Environment and Land Case E054 of 2025) [2026] KEELC 4161 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELC 4161 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Case E054 of 2025 E Asati, J July 2, 2026 Between Samuel Ochieng Onduto Applicant and David Otieno Ojuki 1st Respondent Calara Newa Ojuki 2nd Respondent Peter Omondi Ojuki 3rd Respondent Rolex Okoth Ojuki 4th Respondent Agnes Auma 5th Respondent Elsa Adoyo 6th Respondent Ivone Akinyi 7th Respondent Ruling 1.Together with Originating Summons dated 27th May, 2025, the Applicant filed a Notice of Motion application of the same date stated to be brought pursuant to the provisions of Order 51(1) and Order 40 Rules 1 to 3 of the Civil Procedure Rules and sections 63(e), 3A, 1A and 1B of the Civil Procedure Act seeking for an order of temporary injunction restraining the Respondents whether by themselves, their agents, servant or any person claiming through them from trespassing upon, evicting from or otherwise interfering with the applicant’s use, occupation and possession of land title No. Kisumu/Wangaya 1/3778 that the applicant presently occupies pending the hearing and determination of the suit. The application also sought for an order that the costs of the application be provided for. 2.The record shows that the application, which was dismissed for non-attendance on 23rd October, 2025, was on the same date reinstated to hearing on merit. 3.In reply to the application, the Respondents filed a Replying Affidavit sworn by David Otieno Ojuki on 13th February, 2026, vide which they raised a preliminary objection seeking that the entire suit be dismissed with costs as it was filed against persons who have no capacity to be sued. Directions were taken that the preliminary objection be disposed of first. 4.This ruling is in respect of the Preliminary Objection. 5.It was submitted on behalf of the Defendants that the Plaintiff’s suit is fatally defective as the Defendants have not petitioned for Grant of Letters of Administration in respect of the estate of one Alois Ojuki Opiyo, deceased, in whose name the suit land is registered. That the said deceased died on 21st December, 2006. That a claim of adverse possession under the Limitation of Actions is brought against a registered proprietor to take away title after 12 years of uninterrupted hostile possession. 6.Counsel relied on the case of Mwiinyi Hamisi Ali -vs- The Attorney General & Another (1997)KECA 210 (KLR), where the Court of Appeal held that adverse possession can only be claimed against a properly registered owner, and that the possession must be adverse to that of the registered owner. 7.Counsel submitted that the Respondent, being neither the registered owner nor the personal representative of the deceased registered owner of the land, the suit is misconceived and ought to be struck out with costs to the Respondents. 8.On behalf of the Plaintiff, it was submitted that the preliminary objection is legally untenable, jurisprudentially unsound, and fundamentally misconceived. 9.Counsel relied on the cases of Mukisa Biscuits Manufacturing Company Limited -vs- West End Distributors Ltd. (1969)EA 696 and the case of Oraro -vs- Mbaja [2005]eKLR, where it was held that a preliminary objection cannot be founded on contested facts requiring ascertainment by evidence. That the Respondent’s objection invites the court to determine the contested factual matters under the guise of pure points of law. 10.Counsel submitted that adverse possession runs against the title, not the personal status of the registered proprietor. Counsel relied on the provisions of sections 7, 13, 17, and 18 of the Limitation of Actions Act to support his submissions. 11.Counsel submitted further that time extinguishes title and does not wait for succession. That the death of the registered proprietor does not stop time from running for purposes of adverse possession. For this submission, Counsel relied on the case of Githu -vs- Ndeete [1984]KLR 776. 12.Counsel submitted further that the estate of a deceased proprietor is not immune from adverse possession. For this submission, Counsel relied on the cases of Mwangi & Another -vs- Mwangi (1986)KLR 328 and Kasuve -vs- Mwaani Investment Ltd & 4 Others [2004]KLR 184. 13.Counsel submitted further that beneficiaries claiming under a deceased person’s title are proper parties in the suit. 14.That the Respondents are not strangers but the persons claiming beneficial ownership, threatening eviction, trespassing, interfering with possession, and attempting to dispose of the suit land. 15.That the Respondents’ objection is a procedural technicality dressed as a matter of substance. That article 159(2)(d) of the Constitution commends the Honourable Court to administer justice without undue regard to procedural technicalities. 16.That the Applicant has disclosed a proper cause of action in adverse possession, which is not a matter for summary dismissal. Counsel urged the court to dismiss the preliminary objection. 17.I have considered the preliminary objection and the submissions made by both parties in respect thereof. 18.The certificate of official search attached to the application shows that the suit land parcel No. KISUMU/WANGAYA 1/3778 measuring 2.31Ha is registered in the name of Alois Ojuki Opiyo, who became registered owner on 23rd October, 2003. A copy of the Certificate of death No.0358744 attached to the Replying Affidavit shows that Alois Ojuki Opiyo, aged 73 years, died on 21st December, 2006. 19.These are undisputed facts. They are facts pleaded in the Originating Summons and the Supporting Affidavits and admitted in the Replying Affidavit. 20.The Defendants are described in paragraphs 2 and 3 of the Supporting Affidavit as children of Aloise Ojuki, deceased. There is no pleading in Originating Summons, the Notice of Motion, or Supporting Affidavit that the Respondents are personal representatives of the deceased. 21.Under section 38 of the Limitation of Actions Act, a claim of adverse possession can only be brought against the registered owner or the personal representatives of his/her estate.Section 38(1) and 2 provide: -(1)Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.(2)An order made under subsection (1) of this section shall, on registration, take effect subject to any entry on the register which has not been extinguished under this Act. 22.Under sections 2, 79, and 82 of the Law of Succession Act, a personal representative may be appointed only pursuant to the provisions of the Act, and only the personal representative so appointed has the capacity to deal in the property of the deceased. 23.The question of the capacity of a party to sue or be sued is not a question of technicality as submitted on behalf of the plaintiff, but a substantive question, touching on the right to a fair hearing. 24.I find that the Respondents lack the capacity to be sued. No amount of amendment to the pleadings can give the Respondents, who are neither the registered owners of the suit land nor personal representatives of the said registered owner, the capacity to sue or be sued. The fact that they are the children of the deceased alone does not make them competent to be sued on behalf of the estate of the deceased. 25.The suit against them commenced vide the Originating Summons dated 27th May 2026 is therefore misconceived and incompetent. The suit is hereby struck out. Costs are awarded to the Respondents.Orders accordingly. RULING DATED AND SIGNED AT KISUMU AND DELIVERED THIS 2ND DAY OF JULY 2026 VIRTUALLY THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATI,JUDGE.In the presence of:Atika - Court Assistant.Awuonda for the Applicant.No appearance for the Respondents.