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ELCStruck OutOriginating Summons dated 10th June, 2024· [2025] KEELC 246 (KLR)

Gichuhi & another v Land Registrar, Naivasha & 4 others (Environment & Land Case E024 of 2024) (Environment and Land) [2025] KEELC 246 (KLR)

Environment and Land Court
30 January 2025
MOM.C. Oundo
2,978 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court struck out an adverse possession claim because it named no registered landowner and attached no title extract.

What this practically means

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Executive summary

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The Plaintiffs filed an Originating Summons dated 10th June 2024 seeking to be declared owners of land known as UNS 11 COMM (Loc Market Gilgil, Nakuru) by adverse possession and an order compelling the Land Registrar Naivasha to issue title, plus an injunction against the 3rd and 4th Respondents. The 3rd and 4th Respondents raised a Notice of Preliminary Objection dated 23rd July 2024, contending they lacked locus standi to be sued on behalf of the estate of the deceased owner, who died on 1st October 2015 and of whose estate they were not administrators, and that the matter was res judicata following a ruling of 24th January 2023 in Nakuru ELC No. 09 of 2022, in which a similar suit was struck out for want of capacity. The Plaintiffs countered that their claim was founded on adverse possession, not succession; that the property was unregistered so administration of an estate did not arise; and that the Respondents had been listed as beneficiaries under the Bondeni Informal Settlement Scheme, showing they asserted an interest in the land. The court held that adverse possession must be established against a known registered owner, not in vacuum, and that Order 37 Rule 7(2) of the Civil Procedure Rules requires an extract of title to be annexed, which the Plaintiffs failed to do. Relying on the prior ruling in Gichuhi & another v Kassim & another and the doctrine that parties cannot evade res judicata by adding parties, the court found the suit a nonstarter, struck it out, and allowed the preliminary objection with costs to the 3rd and 4th Defendants.

Key legal issues

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Whether the preliminary objection on locus standi and res judicata merited striking out the adverse possession suit

Holding

The preliminary objection succeeded; the suit was struck out as a nonstarter

Reasoning

The court held that an adverse possession claim must be directed against a known registered proprietor, supported by an extract of title as required by Order 37 Rule 7(2) of the Civil Procedure Rules, which the plaintiffs failed to annex. Further, the identical issue of the defendants' lack of capacity to be sued had been determined in Nakuru ELC 09 of 2022, and adding parties without letters of administration could not evade res judicata. The suit could not proceed against defendants without locus standi.

p. 6

Legal principles established

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  • A claim in adverse possession must be sustained against the proprietor of the suit land, and adversity of title must be established against a known owner, not in vacuum; the claimant must annex the register/document of title to the Originating Summons
  • Parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit

Court orders

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  1. 1.The Plaintiffs' suit (Originating Summons dated 10th June 2024) struck out
  2. 2.Preliminary Objection dated 23rd July 2024 allowed with costs to the 3rd and 4th Defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7(2)
  • Law of Succession ActSections 3(1), 51, 79, 82(a)
  • Limitation of Actions Act, Chapter 22Sections 7, 13, 17, 41

Cases cited (10)

  • Pravinchandra Jamnadas Kakad v Estate of Lucas Oluoch Mumia & 2 others
    [2022] eKLR
  • Law Society of Kenya v Commissioner of Lands & Others
    Nakuru High Court Civil Case No. 464 of 2000
  • Alfred Njau and Others v City Council of Nairobi
    [1982] KAR 229
  • Hawo Shanko v Mohamed Uta Shanko
    (Civil Suit 1 of 2018) [2018] KEHC 7084 (KLR)
  • Johana Kipkurui Rotich vs. Charles Kiagi
    [2019] eKLR
  • Benjamin Kamau Murma & Others vs Gladys Njeri
    C A No. 213 of 1996
  • Peter Kamau Njau v Emmanuel Charo Tinga
    [2016] eKLR
  • Gichuhi & another v Kassim & another (Environment & Land Case 09 of 2022)
    [2023] KEELC 158 (KLR)
  • Omondi Vs National Bank of Kenya Limited and Others
    (2001) EA 177
  • Njangu vs Wambugu and another
    Nairobi HCCC No.2340 of 1991 (unreported)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gichuhi & another v Land Registrar, Naivasha & 4 others (Environment & Land Case E024 of 2024)  (Environment and Land) [2025] KEELC 246 (KLR)", Case Analysis (2025). Originating Summons dated 10th June, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/246/eng@2025-01-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.