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ELCPartially AllowedELC Case No. 120 of 2007 (OS) (formerly cited); arising in suit previously HCCC No. 115 of 2011· [2026] KEELC 4762 (KLR)

Mazu (Suing as the Personal Representative of the Estate of Amri Mchoro Mwamuri - Deceased) v Mwasina & 4 others (Environment and Land Case E014 of 2025) [2026] KEELC 4762 (KLR)

Environment and Land Court
15 July 2026
6,669 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan land court ruled that selling property during a lawsuit doesn't kill an adverse possession claim, and joined the new owners to the case.

What this practically means

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Executive summary

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This is a Ruling of the Environment and Land Court at Kwale (L. L. Naikuni, J) on a Notice of Motion dated 11th February, 2026 by the 2nd and 3rd Defendants seeking leave to enter appearance and striking out of the suit against them under Order 2 Rule 15 of the Civil Procedure Rules, on grounds of no reasonable cause of action and abuse of process, the Applicants contending they were never served, learnt of the proceedings only in December 2025, and had sold the suit parcels (Kwale/Diani Complex/393 and 395) to third parties after a 2020 Ruling dismissed the suit against them. The Plaintiff/Respondent, whose claim for adverse possession was reinstated by the Court of Appeal in Civil Appeal No. E110 of 2021, argued that accrued adverse possession rights are overriding interests that run with the land and survive transfers, and that the proper remedy is joinder/substitution of the transferees. The Court framed four issues. It granted leave to enter appearance, holding that the right to a fair hearing under Articles 50(1) and 25(c) required it. It declined striking out, holding that the claims against the Applicants had merged into the unchallenged default judgment of 7th January, 2010 and so no live claim existed capable of being struck out; the remedy lay under Order 10 Rule 11, and complaints about non-service of the appeal were for the Court of Appeal. It further held that transfers pendente lite do not extinguish accrued adverse possession rights, which attach to the land under Section 28(h) of the Land Registration Act, noting the familial resemblance between the Applicants and the transferees and the absence of recorded consideration. In the disposition, the Court also set aside the default judgment suo moto, allowed joinder/substitution of the current proprietors within twenty-one days, retained the hearing date, and ordered costs in the cause.

Key legal issues

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01

Leave to enter appearance despite subsisting default judgment

Holding

Leave granted; the right to a fair hearing is constitutionally entrenched and the Applicants could not meaningfully move the Court without first coming on record, even though entry of appearance alone cannot dislodge a default judgment.

Reasoning

The Court grounded the decision on Article 50(1) and Article 25(c) of the Constitution and the audi alteram partem rule. Although a default judgment of 7th January, 2010 subsisted and had never been set aside, the Court held that the Applicants could not ventilate any application, including one under Order 10 Rule 11, without first being permitted to come on record. Article 159(2)(d) on procedural technicalities reinforced the grant of leave.

p. 7
02

Striking out the suit against the Applicants

Holding

Prayer declined. The claims against the Applicants had merged into the default judgment of 7th January, 2010, never set aside, so there was no live claim capable of being struck out; the remedy lay in setting aside that judgment under Order 10 Rule 11.

Reasoning

Striking out is a draconian remedy reserved for plain cases (D.T. Dobie; Co-operative Merchant Bank; Yaya Towers; Kivanga Estates). The suit, properly constituted at inception against then registered proprietors, disclosed a prima facie cause of action in adverse possession. More dispositively, the Court of Appeal had reinstated the suit only against the 4th and 5th Defendants because the claims against the 2nd and 3rd stood determined by the unchallenged default judgment. Complaints of non-service of the appeal were directed at the wrong forum.

p. 9
03

Effect of sale and transfer of suit properties during proceedings

Holding

The sale and transfer, without more, neither stops the running of time nor extinguishes accrued adverse possession rights; transferees take subject to overriding interests under Section 28(h) of the Land Registration Act. The proper response is joinder/substitution, not striking out.

Reasoning

Sections 7, 13, 17 and 38 of the Limitation of Actions Act extinguish the registered proprietor's title after twelve years' adverse possession, the subsequent registration being merely declaratory. Section 28(h) of the Land Registration Act protects accrued or accruing limitation rights as overriding interests. The jurisprudence (Githu v Ndeete; Kasuve v Mwaani; Mbira v Gachuhi) confirms the claim attaches to the land and binds successors. The Court noted the striking resemblance and consanguinity between transferees and the Applicants and the absence of recorded consideration, but made no conclusive finding.

p. 11
04

Costs

Holding

Costs of the application to be in the cause, given partial success, the Applicants' late awareness of the proceedings, and the pending substantive trial.

Reasoning

Section 27(1) of the Civil Procedure Act confers a wide discretion, costs following the event unless good reason otherwise. The application succeeded only on the leave prayer and failed on its principal striking-out prayer. Weighing the Applicants' uncontroverted deposition that they learnt of the suit only in December 2025 and the unresolved merits, the Court found the fair and proportionate order was that costs abide the outcome of the suit.

p. 12

Legal principles established

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  • The transfer or sale of land during the pendency of litigation does not interrupt or extinguish accrued or accruing rights of adverse possession, which attach to the land itself as overriding interests under Section 28(h) of the Land Registration Act and bind successors in title.
  • A subordinate court cannot review, vary or circumvent the judgment of the Court of Appeal; grievances about non-service of an appeal must be ventilated before the appellate court itself.
  • A party who deals with property subject to pending litigation does so at his own peril under the doctrine of lis pendens, the pendency of an appeal being a continuation of the lis.

Court orders

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  1. 1.Leave granted to the 2nd and 3rd Defendants/Applicants to enter appearance in the suit and file their requisite documents within thirty (30) days
  2. 2.The default judgment entered against the 2nd and 3rd Defendants on 7th January, 2010 set aside suo moto
  3. 3.Prayer No. (c) of the Notice of Motion dated 11th February, 2026 seeking striking out of the suit as against the 2nd and 3rd Defendants declined and dismissed
  4. 4.Plaintiff/Respondent at liberty, if so advised, to amend the plaint and join/substitute the current registered proprietors of land parcels Nos. Kwale/Diani Complex/393 and 395 under Order 1 Rule 10(2) within twenty-one (21) days
  5. 5.Suit to be mentioned on 8th October, 2026 for confirmation of compliance and further directions; hearing date of 26th October, 2026 before ELC No. 1 Kwale retained
  6. 6.Costs of the application to be in the cause
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution of Kenya, 2010 read with Articles 165 and 159(2)(d); Civil Procedure Act, Cap. 21 and Civil Procedure Rules, 2010

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, "Mazu (Suing as the Personal Representative of the Estate of Amri Mchoro Mwamuri - Deceased) v Mwasina & 4 others (Environment and Land Case E014 of 2025) [2026] KEELC 4762 (KLR)", Case Analysis (2026). ELC Case No. 120 of 2007 (OS) (formerly cited); arising in suit previously HCCC No. 115 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4762/eng@2026-07-15

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