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ELCDismissedNot stated in judgment (Originating Summons dated 25th July 2024; Notice of Motion dated 13th December 2024)· [2025] KEELC 4234 (KLR)

Murabu & another v Mwavula (Environment & Land Case E108 of 2024) [2025] KEELC 4234 (KLR)

Environment and Land Court
4 June 2025
MNMwangi Njoroge
1,219 words in judgment
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The bottom line

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The Environment and Land Court in Malindi dismissed a bid to strike out an adverse possession claim because the applicant never filed the required submissions.

What this practically means

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Executive summary

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The defendant/applicant filed a Notice of Motion dated 13th December 2024 seeking to strike out the plaintiffs' Originating Summons dated 25th July 2024, which claims the suit property, Plot Number 423/II/MN (Title Number 13520), by adverse possession. The applicant contended that a clear registered title exists, that the plaintiffs' documents were products of forgery and perjury, that the plot could not found an adverse possession claim, and sought to enjoin the DCI and DPP and to have the proceedings subjected to forensic examination. The application was supported by the defendant's affidavit of 13th December 2024. The 1st plaintiff, Lily John Murabu, swore a replying affidavit dated 4th February 2025 asserting occupation of the suit land since 1976 with her late husband, open development including a borehole and perimeter wall, and that the applicant's claim was extinguished under Sections 37 and 38 of the Limitation of Actions Act; she welcomed investigation of the documents provided the applicant's own acquisition of title was also investigated. The respondents filed submissions dated 27th March 2025 arguing jurisdiction under Section 38 of the Limitation of Actions Act and that the striking-out and declaration sought were premature, raising issues for full trial. The applicant filed no submissions as ordered. The court, Mwangi Njoroge J, held that the applicant had failed to prosecute his application and dismissed it with costs to the respondents on 4th June 2025, without making findings on the striking-out grounds.

Key legal issues

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01

Whether the defendant's application to strike out the Originating Summons was properly before the court for determination

Holding

The application was not determined on its merits because the applicant failed to file submissions as ordered and failed to prosecute the application

Reasoning

The court directed that the application be disposed of by written submissions. The respondents filed submissions dated 27th March 2025, but by the time of preparing the ruling the applicant had filed none. Since no other method of disposal had been provided, the court treated the non-filing as failure to prosecute and dismissed the application with costs, without addressing the striking-out grounds on their merits.

p. 3
02

Whether the respondents' occupation since 1976 supports an adverse possession claim under Sections 37 and 38 of the Limitation of Actions Act

Holding

Not determined; raised as a contestable issue for the full trial of the Originating Summons

Reasoning

The 1st plaintiff/respondent averred occupation since 1976, open, quiet and uninterrupted, extinguishing the applicant's title under Sections 37 and 38 of the Limitation of Actions Act. The respondents further argued that the defendant's application raised issues only addressable at full trial, not on an interlocutory application. The court made no findings on these matters, dismissing the application for non-prosecution.

p. 3

Legal principles established

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  • A party who fails to comply with the court's directions on filing submissions and to prosecute an application risks dismissal of that application

Court orders

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  1. 1.The Notice of Motion dated 13th December 2024 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 6 Rules 7 & 8
  • Civil Procedure Act Cap 21 Laws of KenyaSections 1, 1A, 3A, 6, 7 & 63(c) & (e)
  • Limitation of Actions Act Cap 22 Laws of KenyaSections 37 and 38
  • Companies Act Cap 380 Laws of KenyaNot specified
Jurisdiction invoked
Environment and Land Court jurisdiction over the adverse possession suit; application brought under Order 6 Rules 7 & 8 of the Civil Procedure Rules, Sections 1, 1A, 3A, 6, 7 & 63(c) & (e) of the Civil Procedure Act, the Limitation of Actions Act and the Companies Act

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, "Murabu & another v Mwavula (Environment & Land Case E108 of 2024) [2025] KEELC 4234 (KLR)", Case Analysis (2025). Not stated in judgment (Originating Summons dated 25th July 2024; Notice of Motion dated 13th December 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4234/eng@2025-06-04

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