Muchena (Suing as the Administrator of the Estate of the Late Amos Muchena M’arimi) v Kibati (Sued as the Liquidator of Nkando Farmers’ Cooperative Society Ltd) & 2 others (Enviromental and Land Originating Summons E040 of 2025) [2026] KEELC 3823 (KLR)
The bottom line
#The Meru Environment and Land Court dismissed a land claim because the plaintiff never got permission to sue a company under liquidation and used the wrong court procedure.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was competent absent leave to sue the liquidator
The suit was void ab initio for want of leave under Section 432 of the Insolvency Act and Section 228 of the Companies Act; Article 159(2)(d) cannot cure the defect
The plaintiff conceded that the society was in liquidation and that no leave was obtained before filing. The court held that the leave requirement is substantive, not procedural, and its breach deprives the court of jurisdiction. Article 159(2)(d) is no panacea for non-compliance with substantive provisions of the law. The gazette notice showed the liquidator's appointment had lapsed, further undermining the suit.
Whether the reliefs could be sought by originating summons
No; the summons bundled reliefs outside Order 37 and involved complex factual and survey questions, rendering the procedure invalid
The court noted that originating summons is designed for summary determination of specific points and not for disputed questions of fact. The plaintiff's claim for boundary delineation, declaration of ownership and adverse possession involved complex factual and survey issues requiring conventional trial. Reliance was placed on the Karanja v Kirundi decision quoting Wepukhulu v Board of Governors Buruburu Secondary School.
Whether adverse possession was proved
Not proved; the photographic evidence was inadmissible for want of a Section 106B certificate
The plaintiff relied on photographs to prove occupation since 1992, but the photographs lacked the requisite electronic evidence certificate under Section 106B of the Evidence Act. Following the Court of Appeal's decision in County Assembly of Kisumu, the court found the photographs had no probative value, leaving the adverse possession claim unproved even had the suit been competent.
Legal principles established
#- Leave to institute a suit against a party under liquidation is a substantive requirement whose breach goes to the root of the suit and cannot be cured under Article 159(2)(d) of the Constitution
- Originating summons procedure is unsuitable for disputes involving complex or disputed questions of fact or matters requiring survey under the Survey Act
- Electronic and photographic evidence requires a certificate under Section 106B of the Evidence Act to be admissible
Court orders
#- 1.The Suit be and is hereby Dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Sections 17 and 38 of the Limitation of Actions Act (Cap 22); Section 22 of the Survey Act (Cap 299); Order 37 Rule 7 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muchena (Suing as the Administrator of the Estate of the Late Amos Muchena M’arimi) v Kibati (Sued as the Liquidator of Nkando Farmers’ Cooperative Society Ltd) & 2 others (Enviromental and Land Originating Summons E040 of 2025) [2026] KEELC 3823 (KLR)", Case Analysis (2026). Originating Summons dated 01.12.2025 (Meru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3823/eng@2026-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.