Ekessa v Magero & another (Land Originating Summons E014 of 2025) [2026] KEELC 1187 (KLR)

The court distinguished Beatrice Wambui Kiarie, noting that case concerned a succession dispute whereas the present claim is for adverse possession. Rule 41(3) of the Probate and Administration Rules empowers the Succession Court to set aside the disputed share pending determination of the land claim, meaning the succession cause awaits the ELC, not the reverse. Adverse possession claims lie against estates and run with the title against predecessors in title.

The court examined Section 45, which prohibits taking possession, disposing of or intermeddling with a deceased's free property without authority. The plaintiff neither took possession nor disposed of estate property; she sued the legal administrators, a fact not denied. Intermeddling means unauthorized handling, disposal or management of an estate, and invoking legal process to make a claim to part of an estate does not fall within that category.

Relying on Owners of the Motor Vessel 'Lillian S' and Mukisa Biscuit, the court held that an issue of jurisdiction must be raised and determined at the earliest opportunity and is a matter of law, thus properly a preliminary objection. Having so characterized it, the court proceeded to decide the substantive jurisdictional question on the material before it without needing oral evidence.