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ELCDismissedNot stated in the judgment· [2026] KEELC 4843 (KLR)

Kingati & another v Thiri (Sued as the Legal Representative of the Estate of M’thiri Njeru alias Mbute Kiriti) (Environment and Land Case E009 of 2025) [2026] KEELC 4843 (KLR)

Environment and Land Court
23 July 2026
1,634 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Defendant raised a preliminary objection seeking striking out of the Plaint, which pleads claims in adverse possession and customary trust. The Defendant argued that the adverse possession claim was incurably defective for having been commenced by plaint contrary to Section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules, that the suit was statute barred under Section 7 of the Act given registration of the suit properties in the deceased's name on 06/02/1986, and that the Plaint failed to plead particulars of the alleged trust as required by Order 2 Rule 10. The Plaintiff, who had filed no defence-facing Defendant, relied on authorities showing that courts after the 2010 Constitution are reluctant to strike out adverse possession suits commenced by plaint. The court applied the Mukisa Biscuit test and dismissed the objection on all grounds. It held that the Plaint was not founded exclusively on adverse possession and that adverse possession claims may be commenced by plaint; that a claim for adverse possession is founded upon, not defeated by, the expiry of the twelve-year limitation period; that the failure to plead trust particulars was curable by amendment; and that the remaining grounds of defect, want of jurisdiction, frivolity, vexatiousness and abuse of process did not raise pure points of law suitable for a preliminary objection. The objection was dismissed with costs to the Plaintiffs.

Key legal issues

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01

Whether an adverse possession claim commenced by plaint rather than originating summons is fatally defective

Holding

No; the claim is not founded exclusively on adverse possession (it also pleads customary trust), and courts have held such claims may be brought by plaint.

Reasoning

The court acknowledged that Order 37 Rule 7 ordinarily requires originating summons, but noted the Plaint also advances a customary trust claim whose propriety can only be tested on evidence. It relied on Court of Appeal authority, including Chevron v Wa Shutu, holding claims for adverse possession may be commenced by plaint after the 2010 Constitution. The ground therefore failed.

p. 6
02

Whether the suit is statute barred under Section 7 of the Limitation of Actions Act

Holding

No; adverse possession accrues upon, and is founded on, the expiry of the twelve-year period, and a customary trust claim is not defeated by Section 7.

Reasoning

The court held that Section 7 bars actions to recover land, but a claim for adverse possession arises only after twelve years of open, continuous and uninterrupted possession under Section 38; the expiry of the period is the foundation of the right, not a bar. The customary trust claim likewise survives. The registration of the suit properties in 1986 therefore did not defeat the suit.

p. 7
03

Whether the Plaint is fatally defective for failure to plead particulars of the customary trust under Order 2 Rule 10

Holding

No; the omission is a curable defect amendable at trial, not fatal.

Reasoning

The Defendant argued the Plaint omitted particulars of the nature, creation, circumstances, breach and beneficial shares of the trust. The court found that even if particulars are lacking, the defect can be cured by amendment and does not render the suit fatally defective. It also noted the Defendant had filed no defence, and such matters are best addressed at trial rather than by preliminary objection.

p. 7
04

Whether the allegations of defect, want of jurisdiction, frivolity, vexatiousness and abuse of process are proper preliminary objections

Holding

No; they require consideration of pleadings and facts and so fall outside the Mukisa Biscuit 'pure point of law' threshold.

Reasoning

Applying the Mukisa Biscuit test, the court held these grounds require ascertainment of facts from the pleadings, which a preliminary objection does not permit. A preliminary objection must be argued on the assumption that all facts pleaded by the other side are correct and cannot depend on contested or unestablished facts.

p. 8

Legal principles established

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  • A claim for adverse possession can be commenced by way of Plaint notwithstanding Order 37 Rule 7 of the Civil Procedure Rules, particularly where the plaint also advances other claims such as customary trust.
  • A claim for adverse possession is founded upon, not defeated by, the expiry of the twelve-year limitation period under Section 7 of the Limitation of Actions Act.
  • Failure to plead particulars of an alleged customary trust under Order 2 Rule 10 is a curable defect, not one fatal to the suit.
  • Grounds requiring consideration of pleadings and facts fall outside the scope of a preliminary objection as defined in Mukisa Biscuit.

Court orders

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  1. 1.The Preliminary Objection dated 01/10/2025 is dismissed
  2. 2.Costs of the Preliminary Objection awarded to the Plaintiffs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land claims (adverse possession and customary trust); not expressly stated in the judgment

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, "Kingati & another v Thiri (Sued as the Legal Representative of the Estate of M’thiri Njeru alias Mbute Kiriti) (Environment and Land Case E009 of 2025) [2026] KEELC 4843 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4843/eng@2026-07-23

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